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SECOND EDITION. r' .'' /. : : :r -'^ ^'i '".''' ■'■■ . 4 • • • • • '•;•'/;' : :• > tit • * * • • • • • • • Jftelboiunc : CHARLES F. MAXWELL (G. PARTRIDGE & CO.), LAW BOOKSELLERS AND PUBLISHERS, 458 LITTLE COLLINS STREET. SWEET & MAXWELL LTD., :i CHANCERY LANE, LONDON, W.C. 1910. S8393 FIBST EDITION, LONDON 1902. • • • < '.. • • • • • * »>• ••> • • ■• •• • • • IIARSTOX, PARTRIDGK & CO., I'llINTKRS, MKLBOURNE. J 9 \ } PBEFACE. It is now more tluui nine years since the Commonwealth of N Australia was established ; and the Constitution which was ,5^ then planted in Australian soil has been watered bounteously .^^ ])y judicial decision, Parliamentary practice and the course of ^ politics between England and Australia, and Commonwealth and States. It will probably be long before the more elusive political development will warrant any confident ^ judgment i;pon the whole — time only can give the neces- X sary perspective. So, at any rate, it appears to the writer, 4^ who has aimed at presenting merely the externals embodied ^ in tlie law, in sueli practice as appears to be established, and in what may perhaps be described as doctrinal opinion. The limitations of a text-book are sufficiently obvious, of which we are not likely to want frequent reminders. Federalism, ^ ;is Professor Dicey remarked years ago, is legalism ; and ^ niucli of its law is hard, dry, and technical. But at the same Co . . . time it involxes, more perhaps than any other branch of law, a fre(|Uriit ii'currence to first principles ; and prol)lems have already emerged in Australia which stir the depths of juristic thought — the nature of tire federal state in an l'viu})ire (p. 345 et w^.) ; the nature of tlie taxing power ami whether rewards are sanctions (p. 511 ft Wf/.) ; wliat arc the essentials of legislative, executive, and judicial power resjiectively ; what is tlie principle of judicial precedent — is lY. PREFACE. it limited bj^ the possibilit}^ of reversal (p. 288) ; while the relations of the Coninionwealth Arbitration Court to the State laws have furnished some interesting discussions on rig] it and liberty or " the attitude of legal indifference." Thus, if politics in a federal system become more legal, legal thought is broadened and deepened both b}^ the nature of the problems and the magnitude of the interests with which it has to deal. While the present work is mainly concerned with " The Constitution " in its technical sense, and the interpretation of it, it has been thought well to include so much of the supplementary legislation adopted by Parliament as would ordinarily be dealt with in an English treatise on constitu- tional law. Some explanation and apology is due to readers for the incompleteness of the references given to recent cases ; the exiDlanation is that the book had to be printed off in sections before the reports were published. The same cause is in part responsible for the somewhat formidable list of " Errata and Addenda." An unforeseen delay in the production of the work has enabled me to insert a note embodying the result of the Referenda on the Constitution Alterations. My indebtedness to American writers will in most cases sufficiently appear by citations. I must, however, particu- larly express my obligation to Professor W. W. Willoughby's American Constitutional System. Mr. A. Berriedale Keith's Responsible Government in the Dominions reached Aus- tralia too late for me to make as much use of it as its importance demands, for which this book is the poorer. Turning to Australia, I must take upon myself a large share of the common debt to Quick and Garran's Annotated Constitution of the Australia7i Comwonwealth and to the late Mr. Justice Inglis Clark's Australian Constitutional Law. To express my debt to the judgments of the High PREFACE. . V. Court of Australia would be an impertinence ; but I may be permitted to acknowledge how much I have learnt from the arguments before that Court which I have had tlie opportunity of hearing, arguments the more interest- ing because the members of the Bench, and sometimes the Bar as well, are among the " Fathers of the Constitution" whose work was being interpreted. Finally, I desire to acknowledge the kindness of the many gentlemen who have answered my inquiries on various subjects ; and to thank m}' friends Mr. Bernard O'Dowd for preparing the indexes, Mr. G. M. aBeckett, of the Victorian Bar, for undertaking an annotated index of the .text of the Constitution, and Mi: R. C. Mills, LL.B., of Queen's College, Melbourne, for assisting me in reading the proofs. W. HARRISON :\IO()RE. Melbourne, May, 1910. TABLE OF CONTENTS. PAGK Table of Cases - - - - - - xiii. Errata and Addknda . . . . . xxv. PART I.— HISTORICAL INTRODUCTION. Ciiaptkr I. — TiiK Foundation of the Australian Colonies and the Sources of their Laws AND Institutions before Federation - 1 II. — The History of Australian Federation - 17 PART II.— GENERAL. Chapter I. — The Nature and Authority of the Federal CoMivioNWEALTii - - - 65 ,, IL — The Constitution of the Commonwealth - 76 III. — The Crown in thk C.'om.monwealth - 85 PART IJI.— TJU': ORGANIZATION OF THE COMMON- WEALTH govern:ment. Chapter I. — The Distribution" of Powers in the Com- monwealth Government - - - '.13 ,, II. — The Parliament . . - . 105 ,, III. — Thk Relations of the Senate and the HousK of Representatives - - l."9 VIII. CONTEXTS. PAOR. Chapter IV. — The Organization of the Executive : The Governor-General — The Federal Executive Council and the King's Ministers of State — The Cabinet System T58 „ V. — The Organization of Commonwealth Administration - - - - 172 „ VI. — The Judicature - . . . 197 „ VII. — Federal Jurisdiction - - - 20G ,, VIII. — The Appellate Jurisdiction : The King in Council and the High Court of Aus- tralia ----- 220 PART IV.— THE POWERS OF THE COMMONWEALTH GOVERNMENT. Chapter I. — The Powers of Colonial Legislatures - 243 ,, II. — The Legislative Power of the Parliament of the Commonwealth - - - 273 „ III. — The Executive Power of the Common- wealth ----- 292 ,, IV, — The Judicial Power of the Commonwealth 303 PART v.- THE STATES. Chapter I. — The States : Constitution and Powers - 325 II.— The Status of the States - - - 345 PART VI.— THE CONTROL OF COMMONWEALTH AND STATE ACTION. Chapter I. — The Courts and Legislation - - 357 ,, II. — The Validity of Laws — Principles of Interpretation - - - - 369 CONTENTS. IX. I'AOK. Ciiaptp:u III. — Uncoxstitutioxal Legislation - - 383 IV. — TiiR Courts and Executive Action - 398 PART VII.—COM.MON WEALTH AND STATES. Chapter I. — Federal and State Relations : The Supremacy of Commonwealth Law - 406 ,, II. — The Incidence of Commonwealth Laws - 413 ,, III. — The Doctrine op the Immunity of Lnstru- mentalities - - - - 4iJl ,, IV. — The State as an Agent of the Common- AVEALTH Government - - - 438 PART VIIL— THE SUBJECTS OF THE POWER OF THE COMMONWEALTH. Chapter I. — The Subjects of the Legislative Power of the Commonwealth Parliament - 445 II. — The Subjects of Federal Jurisdiction - 489 PART IX.— FINANCE AND TRADE. Chapter I. — Finance : Taxation - - - - .j04 ,, II. — Collection and Exi-enditurk of Puulic Money ----- 522 ,, III. — Financial Relations of the Common- wealth AND THE States - - - 528 ,, IV. — Trade and Commerce - - 549 „ V. — The Exercise of the Commerce Power : Exclusive or Concurrent ; Freedom of Trade and Commerce - - - 5G3 ,, VI. — The Inter-State Commission - - 573 ,, VII. — The State Railways - - - 577 X. CONTENTS. PART X.— CONCLUSION. Chapter T. — Territorial Alterations : The Seat of Government - : - - 587 ,, II. — The Alteration of the Constitution - 597 „ III, — Conclusion ----- 607 APPENDIX. A. — (1) Thi^ Commonwealth of Australia Constitution Act 1900 (Annotated) - - - - 625 (2) Constitution Alteration (Senate Elections) 1906 - - - - - - 664 (3) (Proposed) Constitution Alteration (State Debts) 190!) - - - - - 666 (4) (Proposed) Constitution Alteration (Finance) 1909 - - - - - - 666 B. — (1) Proclamation of the Commonwealth - - 669 (2) Letters Patent passed under the Great Seal OF the L^nited Kingdom constituting the Office of Governor-General and Commander- in-Chief of the Commonwealth of Australia - 670 (3) Instructions passed under the Royal Sign Manual and Signet to the Governor-General and Commander-in-Chief op the Commonwealth of Australia ----- 674 (4) Additional Instructions - - - 679 (5) Commission passed under the Royal Sign ^Manual and Signet appointing the Right Hon. The Earl of Hopetoun, P.C, K.T., G.C.M.G., G.C.V.O., to be Governor-General and Com- mander-in-Chikf of thi? Commonwealth of Austr-\lia - - - - - 681 CONTENTS. XI. I'AOK. C, — {1) Lktters Patkxt passed l'xdek the Great Seal of THE United Kingdom constituting thk Office OF Governor of the State of Victoria and its Dependencies in the Commonweaf-th of Aus- tralia ------ 683 (2) Instructions passed under the Royai. Sign mantal and signet to the governor of vic- TORIA AND ITS Dependencies in the Common- wealth OF Australia - . - - 689 (3) Commission' passed undei: tiii: Royal Sign Manual and Signet appointing Sir John Madden, K.C.M.G., Chief Justice of Victoria, to be LlErTICNANT-GoVKRNOR OF VICTORIA AND its Dependencies in the Commonwealth of Australia - . . - . 693 General Index ----- 695 CASES CITED. Ablkman v. Booth, 400. Abrahams, Stephens v., loO. Adair v. U.S., 555. Addyston Pipes Co. r. U.S., 550, 555, 556. Aheni, Roberts v., 4"29. Ah Sheung, Att.-Geu. v., 467. V. Liiulberg, 401, 466. Ah Way and E. Merchant, R. v., 98, 101, Addenda. Ah Yick V. Lehmert, 210, 214, 218, 223. Ah Yin v. Christie, 466. Akers, Hale v. , 502. Aicock V. Fergie, 202. Aldermen, 'I'he, Austin v., 443. Alger, Commonwealtli v., 3.S9. Ailing, Sherlock v., 343. Ames, Champion v. (The Lottery Cases), 280, 549. Amsterdamsch Trustees Kantoor, Under v., 482. Angwin, Holmes v., 224. Apollo Candle Co., Powell i:, SI, 246, 250. Appleton r. Moorliead, 174, 573. Application of the Senate, In the Matter of. 102. Armytage '•. Wilkinson, 403. Arndel, R. v., 305, 320. Asbell )'. Kansas, 569, 570. Ashbury v. KUis, 2()6. Assessors, The, Van Allen r. , 443. Atlantic Coast Line, Prentis r. , 304. Att.-Gen. v. Ah Sheung, 467. and another, (Jock v., 309, 310. V. Bishop of Manchester, 415. V Stewart, 3. for Canada, Att.-Gen. for Ontario v., 280, 285, 368, 411, 473. Att.-Gen. for Canada v. Cain and Ciil- hula, 252, 2,55, 270. for Hong Kong r. Kwok-a- Sing, 95. for Manitoba v. Manitol/a Licence Holders' Association, 436. for N.S.W. V. Brewery Em- ployes Union of New South Wales {Union Label Case), 362, 371, 372, 373, 374, 375, 376, 384, 390, 392, 395, 460, 471, 506. for N.S.W. V. Collector of Customs, 90. 234, 239, 241, 429, 432, 433, 485. 519. for N.S.W., McLeod?-., 259, 260, 265, 267, 389. for Ontario v. Att.-(Jen. for Canada, 280, 285, 368, 411, 473. for Ontario v. Mercer, 365, 499. Attrill, Huntington v., 480. Austin r. The Aldermen, 443. Australasian Automatic Weighing Ma- chine, AV, 566. Australian Boot Trade Employes Feder- ation V. Whylirow, Aildenda. Award of the Wellington Cooks' and Stewards' Union, In re, 259, 266, 282, 283. Backhoisk ?•. Moderana, 232. Baird, Walker v., 489. Baldwin, Robertson v., 316. Ball, Kiminish v., 57". Hultiniore, I'enn r. , 493. Bamford. Rex r., 289, 399, 411, 592. Bank r. Halstead, 102. Bank of Toronto v. Lambe, 71, 251, 424. XIV. CASES CITE] J. Bank of United States, Osboiii v., 210, 402, 501. Bankruptcy Notice, A, In re, 485. Barbier r. Connolly, 337, 341. Barger, The King v., .365, 374, 375, .376, 38-2, 429, 436, 471, 5U5, 506, 507, 508. 51 1, 516, 517, 51S, 615, 619, 623, Addatda, 384-5. See also The Com- monwealth V. McKay. Bark Eudora, Patterson »'. , 555. Bartley, I'eterswald v., 223, 232, 375, 381, 506, 507, 515. Barton v. Taylor, 138a. (,'. United States, 275. Bataillard v. The King, 232. Bateman's Trusts, In re, 86, 491. Bates V. Payne, 320. Baume i'. The Commonwealth, 227, 415, 417, 491, 497. Bawden, King v.. Addenda. Baxter v. Ah Way, Addenda. V. Commissioners of Taxation, 78, 207, 211. 214. 218, 229, 231, 234, 237, 238, 241, 277, 365,370, 384, 408, 411, 418, 427, 428, 4-13, 501, 520, 559, 567, 608. 623. Bayne v. Blake, 241, 242, 414, 418, 420. , Blake v., 226, 2.34. Belisle, L'Union St. Jac(jaes de Mon- treal v., 285, 474. Belknap v. Schild, 402, 403. Bement v. National Harrow Co. Benjamin AiTair, 349. Beresford Hope v. Sandhurst, 130, 131. Bickford Smith & Co. ;;. Musgrove, 243. Bid well, Ui Lima v., "lO. . Downes v. , 75. Bigge,'Hill?;., 161, 300. Bishop of Manchester, Att.-(jen. i". Black, Dow c. , .523. Blackwood, Chanter v., 134. Blackwood v. The Queen, 336. Blake v. Bayne, 226, 2.34. , Bayne v., 241, 242, 414, 418, 556. 415. 420. McClung, 332. Board of Wardens of the Port of Phil- adelpliia, Cooley v., 567. P>olling V. Larsner, 502. Bollman, Ex parte, 206. Booth, Ableman v., 400. Boothby, Mr. Justice, The Case of, 202. Bowman v. Chicago and N. W. Railway Co., 343. , Farnell v., 495. Boyce and Roberts, King v., 482. Brad field v. Roberts, 288. Brenan, Robtelmes v., 255, 270, 463. Brewer v. Kidd, 400. Brewery Employes Union of New South Wales, Att.-Gen. for N.S.W\ v. (Union Label Case), 362, 371, 372, 373, 374, 375, 376, 384, 390, 392, 395,400,471,506. Brimson, Interstate Commerce Commis- sion ('., 97, 309, 322. Brisbane Oyster Fishery Co. v. Emer- son, 260. Brisbane Shipwrights' Co. v. Heggie, 227. Britz, Donohoe v., 315. Broken Hill Case, The, 454, 455, Addenda. Broken Hill Proprietary Co., Potter i'., 459. Brown v. Maryland, 429, 553. , Victorian Railway Commission- ers r., 234. Bruce i\ Commonwealth Trade Marks Label Association, 362, 395. Bryden, Union ('oUiery Co. w., 463, 464. Buckley v. Edwards, 204, 210. Bull. Municipal Council of Sydney r., 337. Bunbury, Weimer v., 316, 321. Burah, "K. r., 81, 95, 106, 250, 255, 512. Burgess, Pace v., 507. Burton v. Thompson, 277. Burwell, Groeuvelt i'., 307, 319, 321. Buttfield r. Stranahan, 99. Cain and Gilhula, Attorney-General for Canada r., 81, 252, 255, 269, 270. , Re.x I'., 81, 269. California v. Central Pacific Railroad Co., 581. California, Hooper v., 55), 555. Callan v. Wilson, 316. Canveron v. Kyte, 161, .300. Campbell r. Hall, 249, 252. Canada, Dominion of, v. Province of Ontario, 106. Canadian Prisoners' Case, 270. Cannon, People v., 324. Carson, Keilly v., 138a. Case of Connnissions of Inquiry, 310. Case of the State Tax on Foreign Held Bonds, 335, Central Pacific Railroad Co., Califor- nia T'., 581. Champion v. Ames (The Lottery Cases), 280, 549. Chanter v. Blackwood, 134. Chapman, In re, 309. CASES CITED. XV. Charles River Bridfje Case, 388. Cherokee Nation v. tstate of (leorgia, 209. Chia Gee v. Martin, 461, 465. Ciiicago and Alton Railroad v. Wiggins Ferry Co., 47S, 479. Chicago and Grand Trunk Railway Co. V. Wellinau, W.l Chicago and N. W. Railway Co., Bow- man v., 343. Chicasro Railway Co. v. Minnesota, 324. Chin Yow i\ U.S., 318. Chi.sliohn n. The .State of Georgia, 207, 4!tU, 497. Chorlton r. Lings, 130. Christie, All Yin v., 466. Chy Lung v. Freeman, 340, 344. Citizens Insurance Co. of Canada v. Parsons, 369, 378, i).")!. City Assurance Society, Johansen v., 232. Citv of Toronto (?. Virgo, 280. Civd Rights Cases, The, 341. 378, 509. Claflin r. Houseman, 69, 212. Clark, FiehU., 98, 99, 244. Clerk, Waring??., 560, 561. Clissold, Perry r., 234. Clo.igh r. Leahy, 309, 310. C.N. &c. Railroad Co., Thomas ;•. , 556. (Johden, De Soiiza v., 131. Cock r. Att.-Gen. and another, 309, 310. Coe V. Errol, 553. Cohens v. Virginia, 69, 419, .501. Golem in. In. rf, 232. Coleridgi!, Cox v., 311. C^oUeccor v. Day, 423. Collector of Customs, Att. -(ien. for N.S.W. \r., 90, 234, 2.39, 241, 429, 432, 433, 435, 519. Colonial Baidc r. Marshall, 234. r. WiUan, .306. !-. Irving, 493, 494, Tax (Q.), Tax, The Colonial Sugar UeHning Co. 315, 5KS, 529. Colorado, Kansas i\, 4t)2, 564. Commissioner of Income Cooper v., 200, 256, 486 Connnissioners of Income l|)ucen v., 30(). Connnis.sioner of Stamps for (j>ueena- land, Harding v., 9. of Taxation, Baxter v., 78, 207, 211, 214, 218, 229, 231, 234, 237, 238, 241, 277, 365, 370, 3s4. 408, 411. 4 IS, 427, 42S, 443, 501, 520, .')M, 567, 008, 623. Commissioners of the Tieasurv, R. c, 403, 405. Commissions of ItKjuiry, The Case of, 310. Commonwealth v. Al^er, 339. , lUume r., 227, 415, 417, 491, 497. 517. , Cousins v., 78. 0. McKay, .382, 429, 511, 516, See also The Kin;/ v. Barijer. , Municipal Council of Sydney v., 88, 411, 428, 446, 511, 519, 567, 608. , National Bank v., 436. r. New South Wales, 410, 429, 488, 561. , State of N.S.W. »;., 537. , Strachan v., 89, 283. (yourt of Conciliation The Kiiia: r. , and 454, of Conciliation and R. r. ; Ex parte Co. Ltd., Aibitration, 455. Court Arbitration, Broken Hill Proply Addenda. of Pennsylvania i: .Standard Oil Co. , 335. Shipowners' Association, Mer- chant Service Guild i)., 75. Trade Marks Label Associa- tion, Bruce r., 362, 395. and Victoria, Tasmania v., 524, 533. Connolly, Barbier v., 337, 341. ("onnor, Horwitz f., 405. Conway r. Wade, 453, Addenda, ('ook V. Sprigg, 48t). Cooiey V. Board of Wardens of the Port of Philadelpiiia, 567. Cooper V. Commissioner of Income Tax, Queensland, 200, 256, 486. r. Stewart, 2, 3. ('. Telfair, 360. Corfield V. Coryell, 332. Coryell, Corfield r., 3.32. County Council of Kent r. Council of Dover, 368. (yount}- of Lane v. Oregon, 377. Courts V. Merchant, .324. C'ousius I'. Commonwealth, 78. Cox V. Coleridge, 311. Coyne, Public Clearing House v., 320, 321. Crease, Robertson v., 206. Crick V. Harnett, 138a. Crown, The, /<]x parte, In re Oriental Hank ("orponiticni, 491. Cunningham v. Toiney Homma, 463, XVI. CASES CITED. Currie, A., k. Co. Propty. Ltd., The Merchant Service GuiUi of Austral- asia I'., 269, 282. Gushing v. Uupuy, 232, 474. Daily Telegraph Newspaper Co. i". McLaughlin, 232, 233. Dalgarno, Hannah v., 223, 224, 230, 231,232. Davenport, Siiinot v., 408, 409, 410. Davies and Jones v. The State of Western Australia, 333, 334, 506. Davis. Tennessee v., 399, 419, 501. Dawkins v. Lord Kokeby, 308, 316. Day, Collector v. , 423. Deakin v. Webb, 71, 235, 237, 238, 381, 410, 426, 427, 506, 559. Debs, In re, 298, 299, 338, 556. Delohery v. Permanent Trustees Co., 4. D'Emdeii v. Pedder, 275, 408, 410, 421, 423, 424, 42B, 427, 429, 519, 559, 567, 5SU, 608 ; Addenda, 389-390. Dennison, Kentucky v., 439, 440, 493. De Sassure v. Gaillard, 502. Des Moines, Home Savings Bank v., 443. De Souza v. Cobden, 131. Devine v. Holloway, 122. Di Lima v. Bidwell, 75. Dill V. Murphy, 138a. Dominion of Canada v. Province of Q.itario, 106. Donohoe v. Britz, 315. , Hanley v., 479. Dooley r. U.S., 75. Doss V. Secretary of State, 89. Doswell V. Impey, 322. Dover, Council of. County Council of Kent v., 368. Dow V. Black, 523. Downes (;. Bidwell, 75. Doyle V. Falconer, 138a. Duder v. Anisterdamsch Trustees Kan- toor, 482. Duncan v. Findlater, 417. Dunn, Macintosh i\, 234. Dupuy, Cushing v., 232, 474. E Eakix »•• Raub, 360. Earl Russell, Trial of, 260, 389. Easton r. Iowa, 423. Edwards, Buckley v., 204, 216. Elkan r. Juveny, 484. Ellis, Ashbury v., 266. Ellis V. McHenry, 6. Emerson, Brisbane Oyster Fishery Co. v., 260. Employers' Liability Cases, 389, 392, 555. Enever v. The King, 415, 417. Errol, Coe v., 553. Eyre, Phillips v., 81, 95, 250, 315. Fairbank v. U.S., 506. Falconer, Doyle i'., 1.38a. Farmers' Trust, The, Pollock v., 516. Farnell ?'. Bowman, 495. Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employees Associa tion (State Railway Servants' Case) .365, 370, 371, 373, .385, 391, 429 431, 432, 451, 550, .551, 555,579 581, 584, 585, Addenda. Federated Sawmillers' Association v James Moore ani Sons (The Wood workers' Case), 287, 366, 372, 376 408, 411, 414, 452, 453, 454, 455 456, Addenda. Fenno, Veazie Bank v., 381, 430, 431, 432, .508, 512. Fergie, A 1 cock v., 202. : Ferrara, U.S. v., 318,319. ! Field ('. Clark, 98, 99, 244. Fielding r. Thomas, 95, 285. Findlater, Duncan v., 417. Flint V. Webb, 229, 237, 365, 366, 427, 443. Florida v. Georgia, 331. Foreign Held Bonds, State Tax on, 335. Fox V. Rol)bins, .344, 393, 550, 565, 566, 567, 571, 572, 609. Freeman, Chy Lung v., 340, 344. Friths. Reg., 89, 491. G Gadd, Kingston v., 259, 265, 281, .381. Gagnon, Prince v., 232, 2.33. Gaillard, De Sassure v., 502. Garnett, In re, 561. Georgia, Cherokee Nation v., 209. , Chisholm v., 207, 496, 497. , Florida v., 331. ^ , S. Carolina v., 493. . V. Stanton, 209. Gerhard, Ex parte., 297. In re, 353. CASES CITED, XVIT. Gibbons V. Ogfleii, 340, 40S, 414, 441, 550, 55-2, 570. Gibbs, Mersey Docks Trustees v., 417. Glass, Speaker of Legishitive Assembly v., UHa. Gleich, Reg. v., 270. Gloucester Ferry Co. r. Pennsylvania, S35, 554. (Jodfrey v. Terry, 2C6. Goldring, Ex parte, 212, 401, 500. (iordon r. U.S., 319. (Governor and Government of New Zealand, Sloman r,, S7, 490, Governor Robert McLean v. U.S., 432, 560, of the State of South Aus- tralia, The King r., 114, 404, 439, Greenhow, I'oindexior r. , 41(5, (iroenvelt v. Burwell, .S07, 319, 321. Gross Receipts, State Tax on, 430. H Habb;k, Missouri, &c. , Railwaj' v., 409, Haddock v. Haddock, 479. Hale r. Akers, 502. Hale r. Henkel, 309. Hall, Campbell v., 249, 252, Halstead, Bank i',, 102, Hauley v. Donohue, 479, Hannah i-. Ualgarno, 223, 224,230, 231, 232. Hans ('. Louisiana, 493, 497, Hardin, Leisy i\ , 343, 553, 571. Harding v. Commissioners of Stamps for Queensland, 9. Harnett, Crick v., 138a, Harrald, Queen v., 130. Hastings Board of HeaUli, R, r., 309. Haweis, Miller v., 502, 503, Hawthorn, Marx i:, 324, Hayburn's Case, 319, Hazelton r. Potter, 270. Head Money Cases, The. 508, Heggie, Brisbane Shipwrights' Union v., 227, Helwig. U,S, v., 507, Henderson, Hoke v., 323, r. New York, 344, Henkel, Hale r, .SuO. Hill V. Biuge, 101, .300. Hillman, R. r.. 9. Hinds, Quan Yick v., 3. 4. Hobokcn {..and Co., Murray r., 100, 314, 310, 318, .324. Hodge V. The Queen, 81, 95, 106, 250, 275. Hodges V. U.S., 509. Hodson, United States v., 275, Hoke '-'. Henderson, 323. HoUoway, Devine v., 122. Holmes v. Angwin, 224, V. Reg,, 89, 491, Home Savings Bank v. Des Moines, 443, Homeward Bound G,M, Co. v McPher- son. 478, Hooper r. California, 551, 555. Hopkins i'. U,S., 557, Horwitz r. Connor, 405. Houseman, Clafiin v., 69, 212, Houston r. Moore, 409. Howarth, Williams v., 89. Huddart Parker c. Moorhead, 159, 174, 240, 303, 304, 307, 309, 311, 314, .32->, 375, 370, 379, 382, 471, 573, 622, Addenda. Hunter's Lessee, Martin v., 275, 419. Huntington ?-. Attrill, 480. Husen, Railroad Co. v., 340, 343. Hutchinson, Palmer v., 89, 491, Hyde v. Hyde, 474. Hyland, R. v., 9, Idaho, Rasmussen v., 570. Illinois, Missouri i:., 402, 493, Illinois, Wabash St, L. !c P, Railway v., 550, Illinois Central Railroad v. McKendree, .391, Impey, Doswell v., 322. Income Tax Case (Pollock c. Farmers' Trust), 516. Income Tax Cases. — See Baxter v. Commissioner and Outlrim r. Webb. Insular Cases, The, 75. Inter-State Commerce Commission v. Brimson, 97, 309, .322, Iowa, ICaston r., 423. Irvnig, Colonial Sugar Refining Co, v., 315, 518, 529. James Moore k Sons, Federated .Saw- millers Association r. (The Wood- workers' Case), 287, .366, 372, 376, 408, 411. 414, 452. 453, 454. 4.55, 456, Addenda. James. Parkin v.. 223, 224, 225, 226, 227, 228. 229, 234. .Teflferson, 204. Johanseii ?•. City Assurance Society, 232. Joimson V. Railroail. 554. Joint Tralhc Association, U.S. v., 556. 2 XVIII. CASES CITED. Jones, United States v., -140. Jones, Davies and, v. State of Western Australia, 333, 334, 506. Jumbiinna Coal Mine v. The Victorian Coal Miners' Association, 216, 279, 371, 3S4, 386, 391, 451, 452, 453, 454, 455, 472. Ju Toy, United States v., 318, 392. Juveny, Ellvan v., 484. K Kamarooka Gold Mining Co. v. Kerr, 229. Kansas, Asbell i\, 569. 570. V. Colorado, 402, 493, 494, 564. , Mugler i:, 506. Kempton Park Racecourse Co., Powell v., 364. Kendall v. U.S., 159. Kent, County Council of, Ex parte, .308. , County Council of, v. Council of Dover, 36S. Kentucky v. Dennison, 439, 440, 493. , Patterson v., 340, 436. Kerr, Kamarooka Cold Mining Co. v., 229. Kidd, Brewer r., 400. r. Pearson, 550, 551. Kielly r. Carson, 13Sa. Ivilbourn v. Thompson, 30."?, 31U, 314. Kimuiish /'. Ball, 570. King, The, V. Barger. 365, 374, 375, 376, 382, 429, 4.36, 471, 505, 506, 507, 508, 509. 511, 516, 517, 518, 615, 619, 623, Addenda 384-5. See also Commonwealth v. McKay. Bataillard i'., 232. ).'. Bawden, Addenda. V. Boyee aiid Roberts, 482. r. The Commonwealth Court of Con- ciliation and Arbitration (Broken Hill Case), 454, 455, Addenda. , Enever v., 415, 417. V. The (iovernor of South Aus- tralia, 114, 404, 439. Lilliecrap v., 232. McCiee v., 232. Millard v., 232. V. Sutton, 88, 90, 331, 415. 429, 432, 433. Kingston *;. Gadd, 259, 265, 281, 381. Klein, US. v., 319, 320, 324. Knight, E. C. Co., U.S. v., 377, 551. Knowlton v. Moore, 430, 516. Kohlu. U.S., 440. Kwok-a-Sing, Att. -Gen. for Hong Kong L". , 95. Kyte, Cameron v., 161, 300. Lambe, The Bank of Toronto v., 71, 251, 424. Larsner, Boiling v., 502. Lathrop, United States r., 213. ■ Laudry, Theberge v., 137, 224. Leahy, jE.c parte, 101-2. , Clough v., 309, 310. Lee Fay v. Vincent, 333. Legal Tender Cases, 276, 450. Lehmert, Ah Yick v., 210, 214, 218, 223. Leisy v. Hardin, 343, 553, 571. Leonard Watson's (Jase, 260. Lewis V. Lewis, 4S3. Licence Cases, 337. 3-10. Lilliecrap v. The King, 232. Lindberg, Ah Sheung v., 401, 466. Lings, Chorlton i\, 130. Liquor Prohibition Case, The, 285, 380. Loan Association r. Topeka, 505. Local Government Board, i?t re, 309. , R. v., 307. Lord V. Steamship Co., 560, 562. Rokeby, Dawkins v., 308, 316. Lords Commissioners of the Treasurj', The Queen v., 40S, -405. Lottery Cases, The, 280, 549. Louisiana, Hans v., 493, 497. , Morgan »'., 506, 507. Low V. Routledge, 259, 260. Lowry, ^Montague, v., 556. L'Union St. Jacques de Montreal v. Belisle, 285, 474. Luxton >:. North River Bridge Co., 581. Lyne, Deakin and, Webb v., 426, 427. Lyons v. Smart, 375. M McAnulty, School of Magnetic Heal- ing v.. 320. McClung, Blake r.,332. V. Silliman, 212. 400, 499. McConnaghy, Pennoyer v., 402. McCray v. United States, 513. McCready r. Virginia, 332. McCuUoch V. Maryland, 277, 279, 334, 370, 422, 423, 424, 425, 426, 428, 130, 506. 509, 521. MacDonald, Musgrove v., 227. McGee r. The King, 232. McHenry, Ellis v., 6. Macintosh i\ Dunn, 234. McKay, Commonwealth r. , 382, 429, 511, 516, 517. See also Tlie King V. Barger. McKelvey r. Meagher, 270, 297, 353, 411, 461. CASES CITED, XIX. McKendree, Illinois Central Railroad r, .S91. McKenzie r. Maxwell, 4S4. McLaughlin, Daily 'I'elegrapli News- jjaper Co. v., 2.S2, •JS.S. McLean, Governor llobeit, v. U.S., 4.S2, 560. McLeod 1". Att. -(ien. for New South Wales, 259, 260, 2G.J, 267, 38!). HcMackin, Ray >:. 2()(t, 270. Macnamara v. Miller, 4S4. Maoplierson, Homeward Bound G.M. Co. v., 478. Madden v. Nelson and Fort Sheppard Railway, 3SL Madison, Marbury *'., 210, 3UU. 401, Maloney, L'x parte, 485. , Ex parte. Re Richards, 485. Manitoba Licence Holders Association, Att.-(jen. of Manitoba (;., 4H(5. Maibury v. Madison, 210, 3GU, 401, 500. Maritime Hoard of ('anada r. Receiver (ieneral of New llrnnswick, 87, 346. Marks', Seegiier v., 484. Marshall, Colonial Hank v., 284. Martin, Chia (iee v., 461, 465. f. Hunter's Lessee, 275, 41!). Marx V. Hawthorn, .S24. Maryland, iJiown c, 42!), 5,5.3. , McCulloch r, 277, 27'.1, 334, 370, 422, 423, 424, 425, 426, 428, 430. 5(16. 50i», .521. , Railroad (Jo. v. ii.i'i Massachusetts, I'lumnier v., 570. , Rhode Island v., 33 L Maurice, United Stales v., 275. Maxwell, Mackenzie v., 484. Mayor of New York v. Miln, 337. Meadowcroft v. People, 324. Meagher, McKelvey v., 270. 297, 353, 411, 461. Mercer, A..(i. for Ontario /•., .3(55, 4!)!). Merchant, All Way and, R. v., 98, 101, Addenda. , Courts v., 324. Merchant Service (iuild r. C'onimon- wealth Shipowners" Association, 75. of .-Vustralaaia v. Curiie &. Co., 269, 282. Mersey Docks Trustees r. Gibbs. 417. Millar /•. Taylor, 3. Millard r. The King, 232. V. Rol)erts, 244, 2-16. 524. Miller r. Haweis, 502. 5().!. . Macnamara v., 4S4. Miln, Mayor of New York v., 337. Minnesota, Chicago Railway Co. c. , 324. Missouri r. Illinois. 402. 4!)3. Missouri, Welion, r., 553. &c. Railway v. Haber, 409. Moderana, Backhouse v., 232. Monangahela Navigation Co. r. U.S., 314. Montague v. Lowrey, 556. Monteilo, The. 561. Moor, Veazie v., 551. Moore, Houston v., 409. , James. & Sons, Federated Saw- millers' Association r. (The Wood- workers' Case), 2^7, 366, 372, 376, 408, 411, 414, 452, 453, 454, 455, 456, Addenda. , Knowlton v., 4H0, 516. Moorliead, Appleton, v.. 174, 573. . Hud dart Parker & Co. v., 159, 174, 240, 303, 304, 307, 309, 311, 314, 322, 375, 376,379, 382, 471, 573, 622, Addenda. Morgan v. Louisiana, 506, 507. Mormon Case, The, 288. Morrison, New Zealand Loan and Mer- cantile Agency Co. Ltd. i'. , 6. Mount, R. v., 4. Mugler V. Kansas, 506. Municipal Council of Sydney /•. Bull. 337. ?'. Connnonwealth, S8, 411, 428, 446, 511, 519, 567, 608. Murphy, Dill v., 138a. Murray v. Hoboken Land Co., 100, 314, 316, 318, 324. Musgrove, Bickford Smith & Co. v., 245. V. Macdonald, 227. V. Toy, 318. , Toy v., 300. N Nairx r. University of St. Andrews, 1.30. Nathan, /;/ re, 404. National Bank r. Connnonwealth, 4.36. of Owensboio', Owensboro' >•., 443. National Harrow Co., Benicnt v.. 556. Neagle, In re. 298, 338. Nelson and Fort Siieppard Railway, Maihlen v., 381. New i?runswick Receiver General. Mari- time l5oard of Canada v., 87, 34(). New South Wales, lie Government of, 165. New South \\'h1os. The Common- wealth r., 410, 429. 4S8. 561. XX. CASES CITED. New Sovith Wales Commissioners of 'J'axation v. Baxter (See Coininis- missiouer of Taxation, Baxter v.), •284, 427. New Soutli Wales, State of, v. Com- monwealth, 537. New South Wales Railway Traffic Em- ployes Association, Federated Amalgamated Government Railway and Tramway Service Association ?•. (State Railway Servants' Case), 365, 370, 385, 391, 429, 431, 432, 451, 550, 551, 555, 579, 581, 584, 585. New York, Henderson v., .344. , Mayor of, v. Miln, 337. , Starin v., 501. New Zealand, Governor &c. of, Sloman v., 87, 490. New Zealand Loan and Mercantile Agency Co. Ltd. r. Morrison, 6. Northern Securities Co. v. U.S., 377, 552, 555, 557, 585. North River Bridge Co., Luxton v., 581. Oceanic Steam Navigation Co. i: Stra- nahan. Addenda. Oesselman, Ex parle, 281. Ogden, Gibbons v., 340, 408, 414, 441, 550, 552, 570. O'Loghlen's (Sir Bryan) Case, 90. O'Loghlin, Vardont-., 114, 115,371,470. Ontario, Province of, Dominion of Canada v., 106. Oregon, County of Lane v., 377. Oriental 15ank Corporation, /« re, Ex parte The Crown, 86. 491. Osborn v. Bank of the United States, 210, 402, 501. Osborne, Peacock v., 241, 419. Outtrim, Webb v., 71, 81, 91, 95, 213, 229, 230, 2.33, 237, 238, 239, 25'), 251, 258, 366, 427, 428, 473, 520, 623. Owensboro', Owensboro' National Bank v., 443. National Bank v. Owensboro', 443. Oyster Steamers of Maryland, 4.32, 560. Pace v. Burgess, 507. Palmer v. Hutchinson, 89, 491 Parham, Woodruff v., 514. Parkin v. James, 223, 224, 225, 226, 227, 228, 229, 234. Parkinson, Royal Aquarium v., 317. Parlement Beige, The, 489. Parsons, Citizens' Insurance Co. v., 369, 378, 551. Passenger Cases, The, 344. Patterson v. Bark Endora, 555. Patterson r. Kentucky, 340, 436. Paul V. Virginia, 551. Payne, Bates v., 320. Peacock v. Osborne, 241, 419. Pearson, Kidd v.. 550, 551. Redder, DEniden v., '275, 408, 410, 421, 423, 424, 426, 427, 429, 519, 559, 567, 580, 60S. Pelican Insurance Co., Wisconsin r., 479, 480, 493. Pendleton, W. U. Telegraph Co. v., 554. I'englase, Ex parte, 484. Peniston, Union Pacific Railway Co. v., 436, 437, 509, 552. Penn v. Baltimore, 493. Penuoyer r. McConnagby, 402. Penns3'Ivania, Gloucester Ferry Co. v., 335, 554. , Priggi;., 371, 409, 410, 4.39, 470. , Pullman's Car Co. v., 335. Common wealtli of, r. Standard Oil Co., 3.35. Co., Toledo A.A. & M.R. Co. v., 556. Pensacola Telegraph Co. v. W.U. Tele- graph Co., 554. People ('. CJannon, 324. , Meadowcroft v., 324. Permanent Trustees Co., Delohery v., 4. Perry i\ Clissold, 234. Peterswald r. Bartley, 223, 232, 375, ,381, .506, 507, 515. Phillips V. Eyre, 81, 95, 250, 315. Plummer r. Massachusetts, 570. Poindexter r. (Jreenhow, 416. Pollock V. The Farmers' Trust, 516. Porter, Taylor v., 314. Postal Telegraph C'o. /;. Taylor, 507. Potter r. Broken Hill Proprietary Co., 459. Potter, Hazelton v., 270. Powell r. Apollo Candle Co., 81, 246, 250. V. Kempton Park Racecourse ' Co., 364. Prentis T'. Atlantic Coast Line, 304. Prigg 1'. Pennsylvania, 371, 409, 410, 439, 470. CASES CITED. XXI. Prince v. Gngiion, 'iSi, 23;i. Province of Ontario v. Dominion of Canada, lUti. Public Clciiring House ?;. Coyne, 320, 321. Pullman's Car Co. r. Pennsylvania, 335. Q QVA^ Yick r. Hinds, 3, 4. :, 81, 95, 106, 2rj(t, 275. V. Lords CoMimissioners of the Treasury, 403, 405. Russell v., 37s, 380. , Tobin v., 415, 49."). Insurance Co., Quebec v., 379, 381. R R. V. Ah Way, 9S, 101, Addenda. — V. Arndel, 30.'). 320. — V. Bamford, 289, 399, 411, 592. — V. Barger, 376. — See King v. Barger. — V. Burah, 81, 95, 106, 2.50, 255, 512. — V. ('ain and Cilliula, 81, 2-52, 255, 269, 270. — V. Commissioners of the Treasury, 403, 405. — ).'. Commonwealth Couit of Concilia- tion and Arbitration, Ex jiarte JJroken Hill I'ropy. Ltd., 454, 455, Addenda. — V. Frith, 89, 491. — (;. Gleich, 270. — V. H.astings Board of Health, .■>(»9. — V. Hillman, 9. — , Hodge r., 81. 95, 106, 2.10, 275. — , Holmes c, 89, 491. — V. Hylaixl, 9. — V. Local (.jIovcrnmenL Board, 307. — V. Mount, 4. — V. Riel, 274. — , St. Catharine's Milling Co. r., 499. — V. Sheahan, 308. — Stevenson v., 202. — , West Rand Central Mining Co. v., 489. — V. Wilson, 490. — r. Woodhouse, 3o5, 306, 317, 398. Kahrer, /// re, 441, 442, .569, 571. Railroad, .loimsoii r., 554. Railroad Co. r. Husen, .340, 343. V. Maryland, 552. ' V. Peniston, 436, 437, 509, 552. ' Railroad Co., U.S. ?•., 430. Railway Servants' Case (See State Rail- way Servants' Case), 451. Rasmussen v. Idaho, 570. Raub, Fakin v., .360. Ray V. McMackin, 260, 270. Receiver General of New l^runswick. Maritime Board of Canada x\, 346. Reiner v. SalisV>ury, 89. ReynoMs, United States i\, 288. Kliode Island v. Massachusetts, 331. Richards Re, Kx parte Maloney, 485. Riel, R. r., 274. Ringer, Ex parte, .306. Rio Grande Dam and Irrigation Co., U.S. (;., 563-4. Robbins, Fox r.. 344, 393, 550, 565, 566, 567, 571, 572, 609. Robbins r. Shelby County Taxing Dis- trict, 568. Roberts v. A hern, 429. , Bradfield v.. 288. , Millard r, 244, 246, 524. Robeitsou V. Baldwin, 316. V. Crease, 206. Robtelmes r. Brenaii, 255, 270, 463. Rokeby (Lord), Dawkins v., 3m8, 316. Routlcdge, Low r., 259, 260. Royal Aquarium r. Parkinson, 317. Russell V. The Queen, 378, 380. (Earl). Trial of, 260, 389. Rustichelli, Ex parte, 482. Rutgers v. Waddington, 360. Kulland, &c., Railw aj- Co., 'I'horp v., 339. Reg., 499. , 130, 131. St. Catharine's Milling Co. r, Salisbuiy, Reiner r. , 89. Sandhurst, Beresford Hope v Schild, Belknap r., 402, 403. Sciiool of Magnetic Healing »' Mc.Anulty, .320. S. S. Scotia, Young r., 86. Secretary of State, Doss c, S9. Seegner r. Marks, 484. Senate, In the Matter of tiie Applica tion of the. 102. Sharp /•. Wak.riel.l. .305, .306. Shoahan, R. c. . .3(»S. Slielb}' C'ounty Taxing District, v., 568. Sherlock r. Ailing. .343. Siiipinoney, Tiie Case of, 106. .Sicboid, Ex )tar(i, 275, 412. Silliman, .McClung c, 212. 4(MI Sinking Fund Cases, The, .307, 314 Sinnot v. Davenport, 408, 409, 410 Robbins 499. XXII. CASES CITED. Slaughter House Case, The, 332, 341, 377, 509. Sloman r. Governor ami Government of New Zealand, 87, 490. Smart, Lyons r. , 37.^. Smith, Whitp Bank v., 410, 470, 561. S. A., (governor of, King r. , 114, 404, 439. South Carolina r. Georgia, 493. V. United Stales, 431. Southard, WajMuan r., 97, 102, 441. Speaker of Legislative Asseml)ly v. Glass, 138a. Spiller V. Tinner, 337. Sprigg, Cook r., 489. Standard Oil Co., Commonwealth of Pennsjlvania r. , Sli-i. Stanton, State of Georgia v., 209. Starin r. New York, 501. State of Georgia, Cherokee Nation v., 209. ■, Chisholm v., 207, 496, 497. ■ r. Stanton, 209. State of New South \Vales v. Common- wealth, 537. State of Tasmania v. Commonwealtli and Victoria, 524, 533. State of Western Australia, Davics and Jones v., 333, 334, .300. State Railway Servants' Case, 365, 370, 385, 391, 429, 431, 432, 451, 550, o'^o, 579, 581, 581, 585. State Tax on b^oreign Held Bonds, Case of the. 335. State Tax on (iross Receipts, 436. Steamship Co., Lord v., 5(10, 562. Stephens Ex parte, 579, 58."). Stephens r. Ahrahams, 150. Stevenson v. Reg, 202. Stewart, Att.-Gen. c, 3. , Cooper r.. 2, 3. Strachan r. Commonwealth, S9, 283. Stranahan, Bntttield v., 99. , Oceanic Steam Navigation Co., v.. Addenda. Sutton, The King v., 88, 90, 331, 415, 429, 432, 433. Sj'dney, Municipal Council of. ;■. Com- monwealth, 88. 411, 428, 440, 511, 519, 567, 60S. T Takiu.ivs Case, 213, 400. Tasmania r. Commonwealth and Vio- toria, 524, 533. Taylor, Barton r., l.'iSA. , Millar ,:, 3. V. Porter, 314. , Postal Telegraph Co. v., 507. T'elfair, Cooper v., 360. Tennant v. Union Bank of Canada, 469. Tennessee v. Davis, 399, 419, 501. , Virginia ?■. , 331, 596. Terry, Godfrey v., 206. Texas v. White, 377, 410, 509. Theberge v. Laudrv, 137, 224. Thomas v. C. N.O. & T.P. Railroad Co., 556. Thomas, Fielding v., 95, 285. Thompson, Burton v., '211. , Kilbourn v., 303, 310, 314. ??. Whitman, 479. Thorp V. Rutland, &c. Railway Co., 339. Tingey, United States ?'. , 273, 276. Tobin V. The Queen, 415, 495. Toledo A. A. & M.R. Co. r. Pennsyl- vania Co., 556. Tomey Homma, Cunningham v., 463. Topeka, Loan Association v., 505. Toronto, Bank of, r. Lambe, 71, 251, 424. , City of, r. Virgo, 280. Toy V. Musgrove. 300. — — , Musgrove v.. 318. Trans-Missouri Freight Association, LT.S. v., ohQ. Trevett v. Weeden, 360. Turner, In re, 400. Turner, Spiller v., 337. Tyson, Re, 3:^5. u Union Bank of Canada, Tennant v., 469. Colliery Co. v. Bryden, 463, 464, Label Case (Att.-Gen. for N.S.W. V. Brewery Emploj'es Union), 365, 370, 371, 373, 374, 375, 376, 384, 390, 392. 395, 460, 471. 506. Pacific R. Co. v. Peniston, 436, 437, 509, 552. U.S., Adair v., 555. , Addyston Pipes Co. i\, 550, 555, 556. -, Barton v., 275. , Chin Yow, r., 318. , Dooley v., 75. , Fairbatik ?•. , 506. V. Ferrara, 318, 319. , Gordon r., 319. , Governor Robert McLean v., 432, 560. V. Helwig, 507. , Hodges v., ."i09. V. Hodson, 275. , Hopkins v., 557. CASES CITED. XXIII. U.S. V. Joint Traffic Association, 55G. V. Jones, 440. V. Ju Toy, 318, 892. , Kendall v., 159. V. Klein, 819. .S->n, 324. V. E. C. Ivnight Co., 377, ool. ■ — -, Kohl v., 440. ';. Lathiop, 213. , MeCray v., 513. I'. Maurice, 275. , ^lonangahela Navigation Co. v., 314. ■ -, Northei'n Securities Co. i-., 377, 552. 555, 557, 585. - - r. Rnilfoad Co., 430. V. Reynolds, 288. V. Rio (irande Dam and Irrigation Co., 5G3-4. ■, Soutli Carolina r.. 431. V. Tingey, 275, 27H. V. Trans-Missouri Freights Asso- ciation, 556. , Wong Wingr., 319. V. Yale'ioild, 319. United States Rank, Osborn r., 210, 402, 501. University of St. Andrews, Nairn v., 130. Van Allen /■. The Assessors, 443. Vardon -•. O'Loglilin, 114. 115,371,470. Veazie i\ Moor, 551. Veazie I'.anU v. Fenuo, 381, 430, 431, 432, 508, 512. Victoria, Coninionwealtli and, Tas- mania c. , 524, 5.33. Victorian Coal Miners' Association, .lunil)unna Coal Mine r. , 21(), 279, 371, 384, 38(i, 391, 451,452, 453, 454, 455, 472. Victorian Radwaj' C'oinniissioners v. Rrown, 234. Vincent, Lee Fay c. , 333. Virginia, E.c parte, 440. , Cohens v., (i9, 419, 501. , McCready v., 332. , Paul v., 551. V. Tennessee, 331, 59G. Virgo, City of 'I'oronto c, 280. Vondel Case, 349. w Wabash St. L. & R. Railway r. Illinois, 550. NVaddington, Rutgers r., 3()0. Wade, (Jonway c. , 453, Ad<]enila. ^Vaketi«ld, Siiarp c, 305, 300. U'alker v. Baird, 489. Wallace. £Jjc parte, 405. Waring v. Clerk, 560, 561. Watson, In re, 485. Watson's (Leonard) Case, 260. Wayman /•. Southard, 97, 102, 441. Webb, Deakin v., 71, 235. 237, 238, 381, 410, 426, 427, 506, 559. , Flint v., 229, 237, 365-6, 427, 443. , Outtrim v., 71, 81, 91, 95, 213, 229, 230, 233, 237, 238, 239. 250, 251,258, 306, 427, 428, 473, 520, 623. Weedcn, Trevett r. , 360. Weigall Affair, 349. \Veimer v. Runbury, 316, .321. Wellington Cooks any the CommomvfaUh Electoral Act 1909, sec. 4, three Com- missioners for each State are substituted for the single Commis- sioner. ,, 122. — In November 1909, the Commissioner for Western Australia having made a report uuder the Act, a motion for its acceptance was submitted by the Minister for Home Affairs to the House of Representatives. The motion was rejected, all the Ministers, except the Minister for Home Affairs, voting against it. ,, 132. — Various amendments in detail are made by the Commonioealth Electoral Act 1909. — "Voting by Post" is now governed exclu- sivelj' by that Act ; and the distance from the polling place is reduced from 7 to 5 miles. I'ages 144-14."). — This part of the book was printed before the rejection of tile Hudget by the Lords in November 1909. Page 160, Note 1. — On the departure of the Governor-General, Lord Dudley, for Ceylon at the end of 1909, a proclamation was issued announcing that the government would be administered during his absence by Lord Chelmsford, the Governor of New South \A'ales, under a dormant commission dated December 2ud, 1909. {Commonwealth Gazelle, December 21st, 1909). ,. 166, Note. -For " Help," read " Helps." XXVI. ERRATA AND ADDENDA. Page 168, Note.— On the resignation of the Deakin Ministry following upon' the general election of April, 1910, Mr. Fisher, leader of the Labour Party in the last Parliament, was sent for by the Governor-General. He asked for delay pending the meeting of the Party. On his re-election as leader he became free to accept office as Prime Minister. A second meeting of the Labour members of both Houses was held for the selection of the other members of the Ministry, and this was carried out by exhaustive secret ballot. The allotment of the offices was, as in 1908, left to the Prime Minister. All but one of the members of the preceding Cabinet were chosen. The Ministry consists of one member from Queensland and Tasmania, and two from New South Wales, Victoria, South Australia and Western Australia. There is no State unrepresented in the distribution of portfolios, while New South Wales alone has two — the second member from South Australia, Western Australia and Victoria being without administrative office. From these facts it appears reasonable to assume that State representation was considered, both in the election of Ministers and in the allotment of offices ; and it has been stated that the omission of a gentleman from Western Australia who was a member of the Cabinet of 1908 was owing to a desire to include a representative of Tasmania. Of the ten Ministers, three are Senators, one of whom holds the portfolio of Defence, a second holds the title of Vice-President of the Executive Council, and the third is an "Honorary Minister." The Prime Minister takes the office of Treasurer. Pages.187 et seg.— The report of the Public Service Commissioner for 1908 (Commonwealth Parliamtntary Papers 1909, No. 46), shows that there is in substance a considerable evasion of the safe- guards of the Public Service Act in the extensive employment of persons who are " exempted " from the Act or are " temporary " hands, engaged under sec. 40 of the Public Service Act. In 1908 the number of persons so employed was over 16,600, of whom 15,650 were in the Postal Department. The practice of provid- ing for increased staff requirements by engaging temporary hands is increasing, and the Commissioner believes that there is an undoubted abuse of the provisions of the Act, and considers that the only solution of the trouble is to remove from the Departments all patronage in the matter of temporary employ- ment, and to vest the power in the Commissioner (p. '^4). Page 240, Note 1.— For " 1908," read " 1907." ERRATA AND ADDENDA. XXVII. Page 272, Line 16.— For " ISoS," read " 1853." Pages 307-3I1-.313. — Hiuddart Parker v . Moorhead is now reported in 8 C.L.ll. 330. Page 320. — The case of Oceanic Steam Navujation Co. v. Stranahan, (1908) 214 U.S. 320, may be added to the cases cited in the notes. ,, 329. — Line 4 from bottom, for " charge," read "change." „ 383.— For " Chapter IV.," read " Chapter III." Pages 384-5.— On the extent of invalidity, see also The Kiwj v. Barger, (1908) 6 C.L.R. at pp. 80-81, 111. 389-390.— See also D'Emden v. Redder, 1 C.L.Pt. pp. 119-120, where it was held that a State Taxing Act passed in general terms ought to be construed as not intended to conflict with the Commonwealth Constitution. Page 408, Note 3. —The matter here referred to came before the HigJi C'ourt for decision in the case of the Australian Bool Trade Employes Federation v. Whyhrow and Others (March 30th, 1910) not yet reported. The Court held that a federal award giving a higher rate of wages than the minimum prescribed by a State Wages Board was not inconsistent therewith, since the parties might lawfully have made an agreement for such higher rate. ,, 4"J8. — In Tlie Kiiu/ v. Bawden, (1905) 1 Tas. L. R. 156, the rule exempting federal officers from taxation on their official salaries is applied to a State Ability Tax which, though calculated on multiples of the annual value of the residence, the Court finds to be in substance an income tax. Pages 452 et seq. — Federated Saw Mill Jbc. Association of Australasia v. James Moore cfc Sons (The Woodioorkers" Case), is now reported in 8 C.L.R. 465. Page 453, Note. — Conway v. Wade is now reported in (1909) A.C. 506. ,, 455. — T\\e Broken Hill Case is now reported in 8 ('.].. 15. 410, snh iiom. R. v. Commonioeallh Court of Conciliation and Arbitra- tion ; Ex parte Broken Hill Proprietary Co. Ltd. „ 457. — Line 6, The question here referred to arose in the case of the Australian Boot Trade Employes Federation v. Whyhrow and Others (March 30th, 1910). In that case a majority of the High Court (Griffith C.J. and Barton and O'Connor .J.J.) re-affirmed XXVIII. ERRATA AND ADDENDA. the principle laid down in the Woodivorkers' Case that a federal award must not be inconsistent with tlie State laws, and that the determinations of Wages Boards were acts of State legisla- tion ; but held also that the powers of the Arbitration Court in industrial disputes extended to doing whatever the parties to the dispute might have effected by agreement. As an agree- ment for a higher rate of wage than the minimum established by a State Wages Board was undoubtedly within the competence of the parties, it was within the competence of the Arbitration Court to award such higher rate. Page 457.— Line 9 from bottom, for " 9 " read " 109." ,, 461. — On the subject of Treaties, see further, Journal of Comparative Legislation, October 1909, at pp. 79 et seq. {Soitth African Union, by A. Berriedale Keith), and Keitli, Hexponnble Govern- meitt in the Donmiionf^, p. 136n. Pages 471-473, — Huddart Parker v. Moorhead is now reported in SC.L.R. 330. „ 497, 499, 501, 503.— For Heading " Subjects of Legislative Power," read " Subjects of Federal Jurisdiction." Page 576.— For "sec. 102," read "sec. 103." PART 1 -HISTORICAL INTRODUCTION. CHAPTER L THE FOUNDATION OF THE AUSTRALIAN COLONIES AND THE SOURCES OF THEIR LAWS AND IN- STITUTIONS BEFORE FEDERATION. The Commonwealth of Australia is formed of the Colonies of New South Wales, Victoria, Queensland, Tasmania and Western Australia, and the Province of South Australia. It appears therefore desirable to state briefly the time and circumstances of their foundation, and the sources to whicli regard must be had in the administration of their laws. The first thino; which must strike an Entrlish lawyer who turns to the study of Colonial institutions is the multi- plicity and complexity of the sources of the law and their striking contrast with the singleness of authority which dominates the English S37stem. The Common Law, the Prerogati\e, Acts of Parliament and Orders thereunder play their part as in England. r)ut the Prerogative looms lartrer in Colonial than in Home institutions ; Acts of Parliament have var3nng force and authority according to their date and their nature ; Orders in Council are less frequently acts of supplementary legis- lation than the exercise of a statutorj^ suspending power or power to put into operation. In addition to these are the 2 THE COMMONWEALTH OF AUSTRALIA. Acts and Oi'dinances of Colonial Legislatures, sometimes of Legislatures between wdiich the power of legislation is divided, sometimes of Legislatures which have been super- seded by others, as Colonies have been divided or joined together, or their progressive development has been marked by changes in their institutions. All the Australian Colonies belonged to the class of colonies acquired by settlement or occupancy. The doubts once held as to the status of New South Wales as a penal settlement (see Bentham, Works, vol. iv.), must now be regarded as set at rest by the decision of the Privy Council in Cooper v. Stewart} The sources of the law common to all these Colonies are the following : — 1. The laws of Encrland at the time of the settlement (or some date fixed by Statute in lieu thereof) so far as they are applicable to the conditions of an infant colony. " It hath been held that if an uninhabited country be discovered and planted by English subjects, all the English Laws then in being which are the birthright of every English subject are immediately in force (Salkeld, 411, 666). But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English Law as is applicable to their own situation, and the condition of an infant colony ."^ Tlie " laws of Eticrland " include the Statute Law as well as the rules of common law and equity : the law so im- ported forms what is sometimes called the common law of the Colony. The applicability of any law according to the principle laid down is one for judicial determination as the occasion arises ; it forms one of the most difficult tasks of the colonial judiciary, and from its nature gives rise to many conflicts of opinion. Even the principle itself appears not yet to be wholly settled. Does the " infant Colony " ^- (1889) 14 A.C. 286. = Blackstone, Com. i. 107. SOURCES OF LAWS. 3 attract more of Englisli Law as its needs develop (as is suggested by Lord Watson in Cooper v. Stewart^ or must a Court called on in 1909 to determine the applicability of any English law take its stand upon tlie condition of the Colony at the time of its foundation, as laid down by the High Court of Australia in Quan Ylck v. Hinds ?- If the latter be the true view, a Colony may be founded in con- ditions which make very little of English Law applicable as of autliority ; and its legal development will tlien be peculiarly in the hands of its Judges who would theoretic- ally have a large field for the expression of that " private justice, moral fitness, and jDublic convenience"^ which make common law. Practically, however, whether by way of authority or of doctrine, Pi^nglish Law is applied as of course unless there be some striking cause of inapplicability or unsuitability. If there be, any tlieoretical difficult}^ in avoiding the particular rule of English Law is overcome by the consideration that it would certainly not be more suit- able or applicable at the foundation of the Colony than it is to-day. Another way of approaching the subject is suggested by the dictum of Sir W. Grant, M.R., in Att.-Gen. v. Stewart* " Whether tlie Statute (of Mortmain) be in force in the island of Grenada will, as it seems to me, depend upon this consideration — whether it be a law of local policy adapted solely to the countr}^ in which it was made, or a general regulation of propert}^ equally applicable to any country in which it is by tlie rules of English Law that property is governed." Accordins to this view, attention is fixed not on the condition of the Colony, but on tlie English Law. That law consists in part of institutions and luk's \vhicli '(1889) 14 A.C. 286. = (190.-)) '-'d.-K. .-U,-), 3.)6. 3 Per Willes J. in MUlnr v. Taylor (1779), 4 Burr. 2303, iit p. 2:512. *2 Mer. 143, at p. 16U. 4 THE COMMONWEALTH OF AUSTKALIA. operate upon or in relation to facts and conditions which are pecuHar and local ; in part, of laws and institutions which are so far general as to be reasonably apj^licable, wherever English Law is the lex terra'. The whole of the latter law becomes the law of a settlement Colony except so far as it may be particularly excluded. In other words, the rule depends upon a distinction analogous to one of the antitheses of jus civile and jus gentium in Roman Law. The principle has much to commend it : it substitutes a more definitely legal test than " suitability," one which gives the same result in the case of all settlement Colonies, and one wdiich if adopted would give a real meaning to the expression " British law." It overcomes also the difficulty already referred to as to the time to be regarded in determinincr suit- ability, and that of subsequent attraction. It was adopted by the High Court of Australia in Delohery v. Permanent Trustees Go.} but is not adverted to in Quan Tick v. Hindsr' It is certainly not from this point of view that the matter has commonly been dealt with by the Courts. In any case, this class of laws — the "common law" of the Colony in the sense above described — falls completely within the power of the Colonial Legislature, which may declare what laws are in force and may repeal any of them ; and on the same principle no repeal of such laws by the Parliament of the United Kingdom affects their operation in the Colony.^ 2. Acts of the Imperial Parliament made applic- able. — Acts of the Imperial Parliament made applicable to the Colony either in connnon with other dominions of the Crown or specially, whether by express words or necessary intendment — these Acts are of paramount obligation. The M1904) 1 C.L.R. 283. = (1905)2C.L.R. 345. 3 See per Fellows J. in R. v. Mount, 4 A.J.E., at p. ."9. SOURCES OF LAWS. O expression made a'pplicahle to tJte Colony requires some explanation. In tlio first place, it excludes those Acts of Parliament which being part of the general law of England applicable to the circumstances of the Colony are received at its settlement as part of its common law ; and it includes all Acts by which Parliament intends to bind the Colonies, whether those Acts were passed before or after the settle- ment of the Colony.^ In the second place, an Act of the Imperial Parliament may relate to a Colony without being in force there, just as it may relate to a foreign country. An Imperial Act may relate or refer to persons, to things situated, to acts done, or to events happening in a Colony or foreign country ; but the enforcement of the regulation established by the Act may belong to the English Courts alone, and be limited by the powers of those Courts to make their orders effective. The Colonies, through their inhabit- ants and in other ways, receive by many Statutes certain favourable treatment in England and in English Courts, either absolutely or upon terms of reciprocity, e.g., by the Colonial Solicitors Act 1900, the Colonial Frohates Act 1892, and the Finance Act 1894. These and the like Acts are very commonly regarded as "applicable to" the Colony; they are in fact " in operation in England in respect to" the Colony. The importance of this distinction is obvious ; but it was ignored by those who compared the financial pro- posals of the Chancellor of the Exchequer in 1S94 with the StamiJ Act of 1765 and the Tea Duty of 1770. Again, the Wills Act 1861, sees. 1 and 2, affects wills made in the Colonies and wills of persons domiciled in the Colonies, but only for the purpose of admitting them to probate in England or Ireland, and in Scotland to confiiniation. The Banhriiptcy Ads and the Companies Act illustrate the two dirt'ercnt kinds of operation. The Bankruptcy Acts vest in *See Lewis, Governmtnt of Dependencks, p. 20L 6 THE COMMONWEALTH OF AUSTRALIA. the trustee the debtoi's' property everywhere in such a way that the trustee's title is enforceable in all parts of the British Dominions ; and a discharge in bankruptcy in Eng- land is a discharge in a paramount jurisdiction, recognized and enforced in all parts of the British Dominions.^ On the other hand, in the winding up of a company in England, while the Eno-lish Court will treat its orders as affecting; all Colonial property of the debtor and as binding all his Colonial creditors, the operation of these orders is limited by the power of the English Court to give eflfect to them, and any recognition they may obtain in the Colonies is due, not to any j)aramount jurisdiction, but to the " comity of nations."- Statutes of this class, i.e., made applicable or extending to the Colonies, may not in general be repealed or varied except by the Imperial Parliament (Colonial Laws Validity Act 1865, sec. 2). But the application of this rule is occasionally excluded by a provision giving special j)ower to the Colonial Legislature to make laws as if the Act had not been passed, and to alter or vary it (e.g., Coinage Act 1853), or to repeal the Act or some part of it (e.g., the Merchant Slapping Act 1894, sec. 735). A special reason for such a provision is that the machinery for carrying out an Act, even upon an Imperial matter, as extradition, may be more conveniently devised by the Colonial Legislature. 3. Statutory Orders and Regulations. — Orders or Regulations made by the Crown in pursuance of Acts of the Imperial Parliament, to which they are equal in authority. These Orders — (a) Put an Act into operation in a Colony, the Act being in terms postponed in the ^ase of such Colony until an ^ Ellis V. McHenry, L.R. 6 C.P. 228. - Neiu Zealand Loan and Mercantile Agency Co. Ltd. v. Morrison, L.R. 1898 A.C. 349. SOURCES OF LAWS. 7 Order is made. Tliis is the commonest case, and many illus- trations miglit be given, e.y., Colonial CoilHs of Admiralty Act 1890, in the case of four Colonies scheduled. {h) Suspend the Act or a portion of it, or apply it with modifications in tlie case of a Colony, generally on the ground that the Legislature of the Colony has made suitable provision for carrying out tlie purposes of the Act, e.g., the Extradition Act 1870, sec. 18; Coinage Act 1853; Colonial Copyright Act 1847 ; International Copy rigid Act 1886, sec. 8, sub-sec. 3 ; Patents Designs and Trade Marks Act 1883, sec. 104. (c) Supplement the Act, e.g., The Charters of Justice of New South Wales 1823 and Tasmania 1831. {d) Bring new subjects within the scope of tlie Act, as where the operation of the Act depends upon treaties, e.g., the Extradition Act 1870 and the International CopyrigJit Act 188G. (e) Give to a Colonial Law the force of law throughout the British Dominions, e.g., Colonial Prisoners Removal Act 1884, sec. 12 ; the Fugitive Offenders Act 1881, sec. 32 ; Merchant Shipping Act 1894, sec. 264 (Application of Part II. by Colonial Legislatures). The Orders in Council under the Colonial Prisoners Removed Act 1869, sec. 4, and the Merchant Shipping Act 1894, sees. 670-()75 {Colonial Lighthouses, &c.) are made upon an ad(h-ess of the Colonial Legislature. 3. Prerogative Orders, Charters, and Letters Patent. — Prerogative Orders, including Charters and Letters Patent, are not of the same importance in a settled as in a conquered Colony ; as Constitutions come to rest more and more on Statute, the Prerogative recedes. Its most important exercise is in the grant of Constitutions, the establishment of Executive authority, the appointment of Governors and the definition of their powers, and the 8 THE COMMONWEALTH OF AUSTRALIA. setting up of Courts of Justice. Most of these things in Australia, however, are done by the Crown under statutory authority, and so fall into the last preceding class. The Orders in Council relating to colonial currency are con- spicuous cases of Prerogative Orders in operation in the Colonies. These instruments are contained in volumes published annually by authority, and those in force are periodically collected and published under the description " Statutory Rules and Orders Revised." 5. Statutes and Ordinances of Colonial Legisla- tures. — Statutes and Ordinances made by the Lepfislature of the Colony, meaning thereby the authority other than the Imperial Parliament or the Crown in Council competent to make laws for the Colony, are of course the ordinary source of new laws in the Colony. There may be more than one such authority. Some Colonies have been formed by separation from others, and inherit the laws enacted by the Legislature of the mother Colony before the separation. Such laws, so far as they apply within her borders, the daughter Colony may repeal. In other cases, there may be legislatures with exclusive powers over different subjects, or with concurrent powers but so related that in case of conflict the enactment of the one shall prevail over the enactment of the other. Both these conditions are true of the Dominion of Canada, and of those Colonies of Australasia which were members of the Federal Council of Australasia. Generally, the powers are exclusive, but where the same matter is within the power of both the central and the local Legisla- ture, the enactment of the central Legislature prevails. Each authority retains control over its own laws, and alone may alter or repeal them. Amongst " Laws and Ordinances made by the Legislature of the Colony" are included many Acts of the Imperial COLONIES SEPARATELY CONSIDERED. 9 Parliament which have been adopted for the Colony by the local Legislature. They form part of the ordinary legisla- tion of the Colony, and are to be distinguished from other local laws merely by a rule that where a Statute has before its adoption by the Colony received an authoritative judicial construction in England, that construction is generally deemed binding in the Colonies.^ 6. Orders under Acts of Colonial Legislature. — Rules, Orders and Regulations issued by some authority within the Colony under powers conferred by the Colonial Legislature, e.g., the Governor in Council, are hardly to be regarded as an independent source of law, since they are issued by an authority acting by delegation merely and are subject to the control of the local Legislature. THE AUSTRALIA J^ COLONIES SEPARATELY CONSIDERED. NEW SOUTH WALES. Captain Phillip's expedition arrived at Botany Bay on the 18th January, 1788, and foi-mal possession of vSydney Cove was taken on the 26th January, which is observed in Australia as " Foundation Day," though the proclamation of the Colony did not take place until the 7tli February. The Governor's commission and proclamation embraced the territory now forming the States of New South Wales, Tasmania, Victoria, and Queensland, as well as part of New Zealand and of the Western Pacific. The early crovernment *- en ^ See Hardinri v. Commissioners of Stamps for Queensland {ISQS), A.C. 7(59. But in Ji. v. Hyland (1898), 24 V.L.R. 101, tlie Supreme Court of Victoria declined to follow //. v. Hillman (186^^), 9 Cox. 3SG, a decision on an Englisli Statute subsequently adopted in Victoria. 10 THE COMMONWEALTH OF AUSTRALIA. was little in accord with the principles applicable to free settlements, and much that was done in the name of authority had a very slender basis of law to support it. The uncertainty as to the legality of the government was met by the Statutes of 4 Geo. IV. c. 9C, and the Charter of Justice of the 13th of October, 1823, and by 9 Geo. IV. c. 83. Although the Act under which the Colony was founded (27 Geo. III. c. 2) contemplated the establishment of '■ a colony and civil government," the true foundation of civil as distinguished from military government dates from 1823. A Supreme Court with the ordinary adjuncts of a common law Court as contrasted with those of a Court IMartial was established, and the Ordinances of a Council, equipped by Statute vvitli Legislative power, took the place of the doubtful regulations of the Governor. In 1829, the Australian Courts Act 1828 (9 Geo. IV. c. 83) superseded the temporary provisions of the Act of 1823 ; and while confirming the Supreme Court and the Legislative Council, the Act also set at rest doubts concerning the law in force in the Colony. Section 24 of the Act provided " that all Laws and Statutes in force within the Realm of England at the time of the passing of this Act (not being incon- sistent herewith, or with any Charter, or Letters Patent, or Order in Council which may be issued in pursuance hereof), shall be applied in the Administration of Justice in the Courts of New South Wales and Van Diemen's Land respectively, so far as the same can be applied within the said Colonies." This has been construed as not apjDlying merel}' to jsrocedure on the one hand nor introducing the whole law of England on the other, but putting the Colony in the same position as if it had been founded on the 25th of July, 1828. The law enacted in the Colony before the establishment of the Commonwealth consisted of — COLONIES SEPARATELY CONSIDERED. 11 1. Laws and Ordinances made hy tlie Gov^ernor and a nominee Council established by Royal Warrant, coming into operation in 1825 under the authority of 4 Geo. IV. c. 9G, continued by 9 Geo. IV. c. 88. 2. Laws made by the Governor and a Legislative Council, one-third nominee, two-thirds elective, established by 5 & 6 Vict. c. 76. The Constitution and powers of the Council were affected by 13 & 14 Vict. c. 59. 3. Laws made by the Queen and a Legislative Council (nominated) and Legislative Assembly (elective) established by 18 & 19 Vict. c. 54 (empowering the Queen to assent to tlie New South AVales Act 17 Vict. No. 41). 4. Orders, Rules and Regulations made by various author- ities in pursuance of powers conferred by the Legislature of the Colony. New South Wales did not become a member of the Federal Council of Australasia, established by the Imperial Act of 1885 (48 & 49 Vict. c. GO). TASMANIA. Although tlie commission of CJovornor Phillip included the territory of Van Diemen's T^and, there was no settle- ment there until the arrival of an expedition under Lieutenant Bowen, on 12th September, 1803. Bowen was commissioned " Commandant of the Island of Van Diemen " by Governor King of New South Wales ; and in February, 1804, the island was made a Lieutenant-Governorship under New South Wales. For some years it was treated less as an integral part of New South Wales tlian as a dependency of that Colony. The Act of 1823, whicli established a Council in New South Wales (to make laws for that " Colony and its dependencies,") authorized the establishment of a Supreme Court of Judicature for Tasmania, with an appeal to the Governor of New South Wales. Tliis power was 12 THE COMMONWEALTH OF AUSTRALIA. exercised on 1 3th October of the same vear. Sec. 44 of the Act empowered the Crown to erect Van Diemen's Land into a separate Colony independent of tlie Government of New South Wales, and to commit to any person or persons within the island such and the like powers, authorities and juris- dictions as might be committed to any person or persons in New South Wales. On 3rd December, 1825, the island w^as proclaimed a separate Colony, and the appropriate Legisla- tive and executive authority established. By the Australian Courts Act 1828, provision was made for the Government of Van Diemen's Land identical w^ith that made for New^ South Wales (q.v.), and including the provision for the introduc- tion of the Laws of England in the administration of Justice. A Charter of Justice, dated 4th March, 1831 was granted under the powers of the Acts of 1823 and 1828. When the representative principle was introduced into New South Wales in 1842, all that was done for Van Diemen's Land was to make permanent the arrangements of the Act of 1828 and to enlarge the number of members of Council. (See 5 & 6 Vict. c. 76, sec. 53). The island was, however, embraced in the Constitutional arrangements of the Act of 1850 (13 & 14 Vict. c. 59), and under that Act acquired a Legislative Council, one-third nominated and two-thirds elected, with the power to alter its own Constitution. This power was exercised by 17 & 18 Vict. No. 17, passed on 31st October, 1854 (confirmed by 25 & 26 Vict. c. 11), and a Legislative Council and Legislative Assembly, both elected, were substituted for the old Legislative Council. The new Legislature held its lir.st session on 2nd December, 1856. The Colonj^ was an original member of the Federal Council of Australasia, and remained a member until the abolition of the Council by the Commomvealth of Australia Constitution Act 1900. COLONIES SEPARATELY CONSIDERED. 13 VICTORIA. The Colony of Victoria was established by separation from New South Wales on 1st July, 1851, under the pro- visions of 13 & 14 Vict. c. 59, sec. 1, and was upon that day duly proclaimed by the Governor-General. Thereupon the authority of the Legislative Council of New South Wales over the Colony ceased and determined. The law of the Colony to the establishment of the Commonwealth comprised — 1. Laws and Ordinances of the Legislative Council of New South Wales up to 1st Jul3% 1851, which by the Act were continued in operation in tlie Colony until such time as the Governor and Letjislative Council of Victoria should see fit to repeal or alter them. 2. From 1st July, 1851, to 20th March, 1856, Laws and Ordinances of the Governor and Lecjislative Council of Victoria (one-third nominated, two-thirds elected). 3. From 21st November, 1856, Laws made by the Legislature consisting of Her Majesty, a Legislative Council and a Legislative Assembly (both elected), established by 18 & 19 Vict. c. 55, empowering Her Majesty to assent to a Bill as amended passed hy the Governor and Legislative Council entitled : " An Act to establish a Constitution in and for the Colony of Victoria." This Act was proclaimed in the Colony on 23rd November, 1855, and thereupon came into force. 4. Orders, Rules and Regulations made by various authorities in pursuance of powers conferred by the Legislature of the Colony. 5. Acts of the Federal Council of Australasia, of which the Colony became a member in 1886. QUEENSLAND. The Moreton Bay district of New South Wales was by Letters Patent proclaimed a separate Colony under the 14 THE COMMONWEALTH OF AUSTRALIA. name of Queensland on tlie 6th of June, 1859, in pursuance of a power contained in 5 & 6 Vict. c. 76, sees. 51 and 52 ; 13 & 14 Vict. c. 59, sees. 34 and 35 ; and 18 & 19 Vict. c. 54, schedule 1, sec. 46. The law of the Colony therefore includes — 1. Ordinances and Statutes of New South Wales up to the date of separation, so far as not varied or repealed by the Legislature of Queensland. 2. Statutes passed by a Legislature, consisting of the Governor, a Legislative Council and a Legislative Assembly established by an Order in Council of 6th June, 1859, validated and effectuated by 24 & 25 Vict. c. 44. 3. Orders, Rules and Regulations made by various authorities in pursuance of powers conferred by the Legislature of the Colony. 4. Acts of the Federal Council of Australasia, of which the Colony became a member in 1886. SOUTH AUSTRALIA. In 1834, Parliament was persuaded to sanction an experi- ment in free colonization, and on the 28th of December, 1836, under the powers contained in 4 & 5 Will. IV. c. 95, His Majesty proclaimed "The Province of South Australia." The Act specially exempted the province from the laws and jurisdiction of any other part of Australia. The law enacted in the Colony before the establishment of the Commonwealth consisted of — 1. Ordinances or Acts of Council passed from 28th December, 1836, to and inclusive of the year 1843, by a Council consisting of the Governor and four official mem- bers, constituted under the authority of 4 & 5 Will. IV. c. 95, and 1 & 2 Vict. c. 60. 2. Ordinances or Acts of Council passed from the year 1844 to the 21st of February, 1851, both inclusive, by a COLONIES SEPARATELY CONSIDERED. 15 Legislative Council consisting of the Governor, three official and four non-official members, constituted under the authority of 5 & 6 Vict. c. 61. 3. Ordinances or Acts of Council passed from the 8rd of October, 1851, to the year 1856, botli inclusive, by the Governor and a Legislative Council of twenty-four mem- bers, eight nominated by the Crown and sixteen elected, constituted under Ordinance No. 1 of 1851, pursuant to power given by tlie Imperial Statute, 13 & 14 Vict. c. 59. 4. Acts passed from 1857 onwards by the Parliament of South Australia, constituted under the Constitution Act (No. 2) 1855-6, which Act itself was authorized by 13 & 14 Vict. c. 59, the " Act for tlic better government of Her Majesty's Australian Colonies." 5. Orders, Rules and Regulations made by various authori- ties in pursuance of powers contained in these Acts. South Australia in 1888 became a member of the Federal Council of Australasia, and sent delegates to the session of 1889. No law affecting her was passed, and she ceased to be a member before the next session. WESTERN AUSTRALIA. Western Australia was declared a British Colony by settlement on 2nd May, 1829, and the first Governor entered upon his government on 1st June, which is sai(P to be the date of the introduction of English Jjiiw. The law enacted in the Colony before the establishment of the Connnon- wealth consisted of — 1. LaAvs, Institutions and Ordinances made by persons appointed first by Order in Council of 29th December, 1831, under 9 & 10 Geo. IV. c. 22. Tlie power of appointment was continued from time to time by other Acts, and the " Persons " were increased in number, and became a "Legis- ^ Journal of the Society of Comparative Legislation, N.S. No. i., p. 71. 16 THE COMMONWEALTH OF AUSTRALIA. lative Council." A non-official element was introduced in 1839, and in 1868 a i^epresentative element. This Legisla- ture began to exercise its powers at the commencement of 1832 and continued until the end of 1870. 2. Laws made by the Governor and a Legislative Council (one-third nominated and two-thirds elected) established in 1870 by Ordinance of the Council last mentioned (Act No. 13, 1st June, 1870) under the authority of 13 & 14 Vict. c. 59, sec. 9. 3. Laws made by the Queen with a Legislative Council and Legislative Assembly established by 53 & 54 Vict. c. 26 (empowering the Crown to assent to the Western Australian Constitution Act 1889, passed by the Governor and Legis- lative Council). 4. Orders, Rules and Regulations issued under the authorit}'' of the Ordinances or Acts. 5. Since 1886, Acts of the Federal Council of Australasia. [IT] CHAPTER IL THE HISTORY OF AUSTRALIAN FEDERATION.! The dangers which attended the existence in a remote part of the world of a group of separate Colonies, became apparent as soon as the first of those Colonies obtained the most rudimentary form of self-government. An Imperial Act of 1842 provided for the establishment of a Legislature in New South Wales of whose members two-thirds were to be elected by the inhabitants of the Colony. In a few years the Legislatures of New South Wales and Van Diemen's Land were in conflict on the tariff, and Sir Charles Fitzroy, the Governor of New South Wales, in recommend- inor the disallowance of an Act of the Council of Van Diemen's Land, indicated at once the danger and the remedy. He considered it " extremely desirable that the Colonies in this part of Her Majesty's dominions should not be permitted to pass hostile or retaliatory measures calcu- lated not only to interrupt their commercial intercourse with each other, but to create feelings of jealousy and ^A very full account of "The Federal Movement in Australia" is con- tained in Quick niul (iarran's Annotated Conatitution of the Commonwealth of Australia (1901). Mr. C. D. AUin, a Canadian writer, in his work The Early Federation Mocemput in Australia (Kingston, Ontario, 1007), has dealt in detail with the movement down to iSGIi, and has drawn largely upon the less accessible sources, such as newspapers, as well as upon official documents. 18 THE COMMONWEALTH OF AUSTRALIA. ill-will, which, if not checked, may lead to mischievous results." It appeared to him that " considering its distance from home, and the length of time that must elapse before the decision of Her Majesty's Government upon measures passed by the Legislatures of these Colonies can be obtained, it w^ould be very advantageous to their interests if some superior functionary were to be appointed to whom all measures adopted by the local Legislatures, affecting the general interests of the mother country, the Australian Colonies, or their intercolonial trade should be submitted by the officers administering the several governments before their own assent is given." The necessities of trade which called forth this the first suggestion of a single control were to the last the central fact upon which the federal move- ment depended, at once the most formidable obstacle — " the lion in the path " — and the great impelling force. That the evils foreseen by Sir Charles Fitzroy would cjrow with the increase in the number of the Colonies was apparent to the Committee for Trade and Plantations to which in 1849 Earl Grey referred the subject of the better government of the Australian Colonies. The Committee reported that the separation of Port Phillip from New South Wales — which they recommended — would probably be followed by differences in tariffs which would become a grave inconvenience as the number of settlers on both sides of the dividing line increased; and to prevent this, they proposed that an uniform tariff for Australia should be fixed by the Imperial Parliament. For the adjustment of this tariff' from time to time, there was to be a General Assembly, representative of all the Colonies, to be sum- moned as occasion required by a Governor-General. The mode of constituting the General Assembly was indicated ; and to it \vere to be committed, besides the tariff, postal communications, intercolonial transit, the erection and main- HISTORY OF AUSTRALIAX FEDERATION. 19 tenance of beacons and lighthouses, port and harbour dues on shipping, and the regulation of weights and measures. The General Assembly was to have power to establish a General Supreme Court with original and appellate juris- diction, and generally to enact laws upon subjects referred to it by the Legislatures of the Colonies. Finally, there was to be allowed to the General Assembly a power of appropriating funds for the purposes committed to it.^ The Constitution Bill of 1850, introduced by Earl Grej', adopted the scheme of the Committee for Trade and Plan- tations, for the establishment of a general executive and legislative authority in Australia to "superintend the initia- tion and foster the completion of such measures as those communities may deem calculated to promote their common welfare and prosperity." The scope of the General Assembly was extended in the Bill by a proposal to put the " waste lands " of the Colonies under that body as a means of pre- venting the dissipation of the resources of the Colonies by the competition of different land systems ; and the Govern- ment promised consideration to a suggestion that a Supreme Court should be established for the settlement of disputes between the Colonies. Neither in Parliament nor in the Colonies was the measure cordially received. In England, the fact that the Colonies had not asked for such super- intendence and supervision; in Australia, jealousies among the Colonies and of the Colonial Ofhce, combined to make the scheme unpopular. The General Assembly clauses passed the Commons, but were withdrawn in the Lords. The amendments required could hardly be made without communicating witli the Colonies. Meanwhile tlu> innne- diate object of the Bill — the .separation of Port Phillip from ^For the full report, see The Colonial Policy of Lord John RnasdUs Administration, vol. i. Appendix. 20 THE COMMONWEALTH OF AUSTRALIA. New South Wales — was pressing, and the establishment of a General Assembly could be dealt with at some future time. That part of the scheme which concerned a General Execu- tive, however, did not require Legislative sanction; and Earl Grey had not abandoned his scheme. Accordingly in 1851 Sir Charles Fitzroy was appointed "Governor-General of all Her Majesty's Australian possessions, including the Colony of Western Australia," and the Lieutenant-Governors were instructed to communicate with the Governor-General in matters of common interest. Not less important were the Commissions appointing the Governor-General Governor of each of the Colonies, for they enabled him by a visit to any Colony at once to assume the administration of government there.^ But Earl Grey left the Colonial Office in 1852, and the nursing policy was abandoned. In the future, sugges- tions for the government of Australia must come from the Colonies themselves, and on matters of common concern the Home Government must be well assured that the Colonies were thoroughly agreed before any action could be taken. In 1855, the Lieutenant-Governors became Governors, and in 1861 the Duke of Newcastle determined not to renew the commission of Governor-General to the Governor of New South Wales, on the ground that such a title indicated "a species of authority and pre-eminence over the Governors of other Colonies which . . . could not with justice be continued, and if continued could not fail to excite dis- satisfaction very prejudicial to their common interests." In Australia, the expediency of a general, or as it soon came to be called a federal, government demanded too much political foresight to capture the popular imagina- tion. Earl Grey's hopes were, however, shared by Went- w^orth and Deas-Thomson in New South Wales, and ^See Jenks, Government of Victoria, lo5-G. HISTORY OF AUSTRALIAN FEDERATION. 21 by Charles Gavan Duffy in Victoria. In 1S53, Com- mittees of the Legislative Council in New South Wales and Victoria were preparing Constitutions embodying responsible government in those Colonies. Wentworth succeeded in inducing the Legislative Council of New South Wales to declare in very emphatic terms for a scheme substantially the same as Earl Grey's ; and Victoria, more guardedly, recorded an opinion in favour of occasionally convoking a general assembly for legislating upon subjects submitted to it by any Legislature of the Colonies. The Constitution Bills forwarded to England, however, dealt purely with the affairs of the two Colonies respectively, and a Government whose hands were very full in 1855 did not see its way on the thorn}^ path of Constitution making for the Colonies. But Wentworth, who had returned to Eao;land,^ Gavan Duffy, who had come to Victoria, and Deas-Tliomson pur- sued tiie subject with zeal ; and the year 1857 was one of promise for the federal cause. The " General Association for the Australian Colonies," under Wentworth 's auspices, adopted a Memorial to the Secretary of State, which indicated matters in which the difficulty of securing joint action had already been experienced, and after urging the duty of Her Majesty's Government to anticipate the wants of the Colonies, sketched out the scheme of a permissive bill, for the establishment of a General Assembly. The Legislatures of the Colonies were to appoint an equal number of representatives to a Convention for framing a Constitution for a Federal Assembly. There was no men- tion of a federal executive, and the expenses of the Federal Assembly were to be apportioned amongst and provided by the Legislatures of the Colonies. The body contemplated was in fact not very different from the Federal Council established in 1885. The list of federal subjects is, however, 22 THE COMMONWEALTH OF AUSTRALIA. au extensive one, and bears witness to the growing incon- venience of separation. The reply to the Memorial was written by Mr. Herman Merivale, and was a 7ion possumus. The Secretary of State was sensible of the difficulties which had been experienced, and was aware that they were likely to increase. He did not think, however, that the Colonies were prepared to give such large powers to the Assembly in respect to taxation and appropriation as were involved in the tariff and many other matters to be submitted ; and even if they were to assent in the first instance to the establishment of such a scheme, the further result in his opinion would probably be dissension and discontent. He would readily give attention to any suggestion from the Colonies for providing a remedy for defects which experi- ence might have shown to exist in their institutions and which the aid of Parliament was required to remove. If the establishment of some general controlling authority should be impracticable, he trusted that much might be done by " negotiations between the accredited agents of the several local Governments, the results agreed upon between such agents being embodied in Legislative measures passed uniformly and in concert by the several Legislatures." More important were the steps taken in the Colonies. Independent action was taken in New South Wales and Victoria by the appointment of committees of the Legis- lature to consider the subject of federation. Mr. Charles Gavan Duffy's committee (Victoria) was the first to con- clude its labours, and its report is a striking statement of the case for federation. After affirming- that there is unanimity of opinion as to the ultimate necessity for federal union, the report proceeds : — " We believe that the interest and the honour of these growing States would be promoted by establishing a system of mutual action and co-operation amongst them. Their interest suffers and must continue to HISTORY OF AUSTRALIAX FEDERATION. 23 suffer while competing tariffs, naturalization laws, and land systems, rival schemes of immigration and of ocean postage, a clumsy and inefficient method of communication with each other and with the Home Government on public business, and a distant and expensive system of judicial appeal, exist. The honour and importance which constitute so essential an element of national prosperity, and the absence of which invites aggression from foreign enemies, cannot perhaps in this generation belong to any single Colony in this southern group, but may and we are persuaded would be speedily attained by an Australian Federation representing the entire. Neighbouring States of the second order inevitably become confederates or enemies. By becoming confederates so early in their career, the Australian Colonies would, we believe, immensely economise their strength and their resources. They would substitute a common national interest for local and conflicting interests and waste no more time in barren rivalry. The}- would enhance the national credit, and attain much earlier the power of under- taking works of serious cost and importance." Finally, the Committee recommended a conference of New South Wales, Tasmania, Victoria, and South Australia, and laid down with minuteness the questions which such a conference would have to consider. The New South Wales Committee recognized the diffi- culties that attended an attempt to deal with the subject, but shrewdly observed that those difficulties were likely to increase rather than diminish. In 1858, the four Colonies had agreed to a Conference, and in 18G0, the new Colony of Queensland gave in her adhesion. All this, however, was not without reservation. South Australia was of opinion that the project of a Federal Legislature was premature, but believed that there were many topics on which unil'orn\ legislation would be desir- 24 THE COMMONWEALTH OF AUSTRALIA. able. Queensland, as was to be expected from her newly won independence, foresaw obstacles to the creation of a " central authority tending to limit the complete independ- ence of the scattered communities peopling this continent." A change of Ministry in New South Wales led to a change of policy there, and despite urgent representations from Victoria and Tasmania, the proposed conference never took place. The fiscal conference held in 1863 for the purpose of attempting an agreement on the tariff declined without instructions to consider federation. The six Colonies of Australia were now well started on their career as separate countries, and as they developed separate interests and separate policies, the prospects of union became more and more remote. The difficulties were of more than one kind. The tariff had been a source of trouble from the beginning. The geographical situation of some of the Colonies w^as such that goods imported into a Colony with lower duties could readily find their way into other Colonies, and in this way evasion of the revenue laws was systematized, for it was impossible for the Colonies to bear the expense of a service capable of guarding their frontiers. It was for this reason that the need for an uniform tarifi' was insisted upon in the early years, Even when there was no desire to evade the higher revenue duties, it was often the case that the port of a particular territory was either by natural situation, or the course of trade, in another Colony. Agreements were made which in a rough and ready way provided a remedy. New South Wales and Van Diem en's Land for some years mutually gave free admission to goods. In 1855 an arrangement was come to by New South Wales, Victoria, and South Australia, whereby, first, no import duties were to be taken on goods crossing the Murray, the frontier of New South Wales and Victoria ; and secondly, goods coming HISTORY OF AUSTRALIAN FEDERATIOX. 25 by water carriage up the Murray for New South Wales or Victoria paid duty at Adelaide, New South Wales and Victoria dividing equally the proceeds of collection. This arrangement subsisted until 18()4, when negotiations for a revision of the system of distribution broke down. The agreement, with some modifications, was renewed, and was finally terminated in 1873. A modified system of inter- colonial free-trade, by which each Colony admitted free goods bond jide the produce of any other Colony, was suggested by South Australia in 1862, but received little encourairement. There was in fact another obstacle than the inability to agree. All the Colonies were restrained by Imperial Acts from establishing preferential or differential duties ; and this applied equally to their relations with each other as with the outside world. The Colonies set themselves there- fore in the first instance to secure the removal of these obstacles, and intercolonial conferences asked the Home Government to permit reciprocal arrangements among them. At first, these proposals met witli little encouragement. Successive Secretaries of State — the Duke of Buckingham in 1868, Earl Granville in 1869, and Lord Kimberley in 1870 — felt that they could not witli propriety ask Parlia- ment to assent to a measure wherebj^ one part of tlio British Dominions might difi'erentiate against another ; and the Home Government was aftected by tlie fear of compli- cating foreign relations. The Colonial Ofiice, liowever, pointed out that the objections and the difiiculties of the Home Government would be removed by a " complete customs union," or by any arrangement which made the Australian Colonies one country, instead of several countries. In 1873, the resistance of the Imperial Government gave way before the insistence of the Colonies; and i\\& Aus- tralian Colonies Duties Act 1873 removed all obstacles to 26 THE COMMONWEALTH OF AUSTRALIA. tariff arrangements amongst the members of the Austral- asian group. The removal of legal restraints had, however, no other result than to mark the width of the gap between the Colonies. The question between them was no longer the mere adjustment of tariff regulations so as to meet the financial necessities of all, and to secure to each its fair share of revenue collected. Protection had taken firm root in Victoria ; and it was not long before that Colony w^as as much concerned to protect her agricultural products and her pastoral industry against her neighbours as to protect her manufactures against the pauper labour of Europe. The way was thus barred to the free exchange even of Aus- tralian products, for Victoria would hear of it on no other terms than that her manufactures should find a free market in the other Colonies. Protection be^ot retaliation ; and after an unsuccessful attempt to effect a fiscal union in 1881, it became evident that in the interests of peace the tariff must be laid aside for a time. The impossibility of establishing a customs union, and the bitterness of feeling which attended the tariff differences, gave little hope for the cause of federation. Still there were other matters in which disunion meant inconvenience and even danger ; and in 1870 Mr. Charles Gavan Duffy obtained a Royal Commission in Victoria on the best means of accomplishing a federal union of the Australian Colonies. The time was one in which the foreigrn relations of the Empire, both wnth Europe and America, wore an unusually threatening aspect ; and there were not wanting responsible statesmen both in England and the Colonies who believed on the one hand that the Colonies were a source of entangle- ment and weakness to England, and on the other that the connexion with England was the one thing which threatened the peace of the Colonies. There were also plentiful HISTORY OF AUSTRALIAN FEDERATION. 27 elements of discord witliiii the Empire, and the recent confederation of the Canadian Provinces was generally regarded as a step towards independence. In the not unlikely event of war, the Colonies were in a peculiarly ex- posed condition, for the Home Government had just carried through the withdrawal of Imperial troops in pursuance of the policy approved by the House of Commons. The report of Mr. Charles Gavan Duffy's Commission bears tlie impress of the times. Urging as before the importance on sentimental grounds of creating an united nation, the report declared that the Colonies presented the unprece- dented phenomenon of responsibility without either corre- sponding authority or adequate protection. They were as liable to all the hazards of war as the United Kingdom, but tliey were as powerless to influence the commencement of war as to control the solar system ; and they had no certain assurance of that aid against an enemy upon which the integral portions of the United Kingdom could reckon. This was a relation so wanting in mutuality that it could not be safely regarded as a lasting one, and it became necessary to consider how far it might be so modified as to afford greater security for permanence. Reference was made to the former relation between Entjland and Hanover, and between England and the Ionian Isles, whicli showed that two sovereign States might be subject to the same Prince without any dependence on each other, and that each might retain its own riHits as a free and sovereign State. The only function which the Australian Colonies required to entitle them to tliis recognition was the power of con- tracting obligations with foreign States, " the want of this power alone distinguishes their position from that of States undoubtedly sovereign." "If the Queen were authorized by the Imperial Parliament to concede to the greater Colonies the right to make treaties, it is contended that they would 28 THE COMMONWEALTH OF AUSTRALIA. fulfil the conditions constituting a sovereign State in as full and perfect a manner as any of the smaller States cited by jurists to illustrate this rule of limited responsibility; and the notable concession to the interests and duties of humanity made in our own day by the Great Powers with respect to privateers and to merchant shipping, renders it probable that they would not on any adequate grounds refuse to recognize such States as falling under the rule." " It must not be forgotten that this is a subject in which the interests of the mother country and the Colonies are identical. British statesmen have long aimed not only to limit more and more the expenditure incurred for the de- fence of distant Colonies, but to withdraw more and more from all ostensible responsibility for their defence, and they would probably see any honourable mode of adjusting the present anomalous relations with no less satisfaction than we should." The Imperial Government might ascertain the views of the African and American Colonies and take the necessary steps to obtain its recognition as part of the public law of the civilized world.^ The circulation of the report elicited expressions of opinion from a number of public men in the Colonies (amongst them Mr., afterwards Sir Henry, Parkes), as to which Sir C. G. Duffy has since remarked that " a dozen years had not apparently ripened the ques- tion for action, but apparently had raised a plentiful crop of new objections." The truth was, however, that Duffy's scheme of neutrality appeared to involve nothing less than separation and independence. There was small faith in the sanctity of neutrality, and the general opinion was probably expressed by the gentleman who observed that " no enemy who had the means or power to attack us would respect our neutrality." Australia was in fact be2;innin£ to have foreign affairs ^Parliamentary Papers, Victoria, 1870, 2nd Session, vol. ii., p. 247. HISTORY OF AUSTRALIAN FEDERATION. 29 veiy near her door, and the policy of more than one great Power began to develop in the Pacific in a manner whicli would compel Australia to adopt a counter polic}', to main- tain which she would require at her back the whole strength of the Empire. It was in 1870 that an intercolonial con- ference first discussed the subject of defence and the Pacific Question. Present interest centred upon Fiji, where the lawlessness of the relations between natives and European traders had long been a grave scandal ; and after man}- negotiations and inquiries, the islands were ceded to Great Britain in 1874. In 18G4, France sent her first consign- ment of criminals to New Caledonia ; and Australia, which in the eastern Colonies had long got rid of transportation, saw the last arrival of convicts in the West in 1867. The Colonies were not disposed to view with equanimity the establishment of the hated thing so near their shores ; and their sentiments no doubt magnified the dangers of escaped convicts finding a refuge on Australian shores. There was reason to believe that France, anxious to increase her possessions and extend her system, intended to annex the New Hebrides, and to use them for the wholesale transporta- tion of her most hopeless criminals. An agreement in 1878 between Eng-land and France that neither should annex the islands did not altogether allay apprehensions, and the designs of France have always been and are now regarded with suspicion in Australia. In the Samoau group, im- portant German and American interests were established, and wound themselves about the complicated internal politics of the islands, so that action b}'' the Governments became necessary, and the intervention of the United States in 1875 was soon followed l)y that of Germany. lu 1883, federation was " in the air.' The junction of the New South Wales and Victorian railwaj-s at Albury led to an exchange of courtesies — then not too counnon — 30 THE COMMONWEALTH OF AUSTRALIA. between the politicians of the Colonies, and many pious wishes were expressed for federation. There the matter mio-lit have ended but that events outside Australia sud- denly gave a stimulus to action. The suspected designs of Germany upon New Guinea had for some time aroused anxiety in Australia. At last the Government of Queens- land sent a commissioner to take possession of New Guinea, and, aware that the Home Government was likely to disapprove of the step, at once took action to secure the support of the other Colonies, in which she had some success, notably with the Colony of Victoria. The Secre- tary of State (Lord Derby), while repudiating the act of Queensland, took the opportunity of pointing out that — " If the Australian people desire an extension beyond their present limits, the most practical step that they can take, and one that would most facilitate any operation of the kind and diminish in the greatest degree the responsi- bility of the mother countr}^, would be the federation of the Colonies into one united whole which would be powerful enough to undertake and carry through tasks for which no one Colony is at present sufficient." In November and December 1883, owing principally to the exertions of Mr. Service, the Premier of Victoria, the first Australasian Convention met at Sydney to consider the subjects of " The Annexation of Neighbouring Islands, and the Federation of Australasia." The Convention consisted of Ministers from the Australian Colonies and New Zealand, and in the later stages of the proceedings Fiji was represented. The Con- vention promulgated what has been called the Monroe Doctrine of Australia. It resolved 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." Other HISTORY OF AUSTRALIAN FEDERATION. 31 resolutions of the Convention urtjed the annexation of New Guinea, protested against the transportation of French criminals to the Pacific, and demanded that the under- standing of 1878 in regard to the New Hebrides with France should be observed by that power, or, if it were possible, that the New Hebrides shoiild be acquired by Great Britain. Of these measures, the Convention declared that the Colonies were prepared to bear the cost, thus removing: what had hitherto been a great obstacle to the Home Government meetincr the wishes of the Colonies in the extension of responsibilities. But it was not the mere acceptance of a policy with which Mr. Service would be content. In the course of the corre- spondence which followed the action of Queensland, Mr. Service, following up his empliatic declaration at Albury, said : " That Confederation can now be effected in all its fullness I do not hope, but that some basis can be agreed upon for a federal union of botli a legislative and executive character capable of dealing with those important questions which are immediately pressing, and which will gradually develop into a complete Australian Dominion, I have the greatest hopes. Conferences hitherto have produced a minimum of result. Resolutions liave been passed over and over again, but as there existed no common legislative body to give them force the greatest part of them remained a dead letter. A limited federation now Avould give prac- tical effect to the wishes of the Colonies on those points on which they are agreed. A common danger — the out- pouring of the moral lilth of Euroi^e into the.se seas — a common desire — to sav^e the islands of Australasia from the grasp of strangers — render federal action a necessity, and federal action is only possible by means of a federal union of some sort." The result fell short of his aims; but it marked a great step forward, for the Convention of 1883 gave birth to the Federal Council of Australasia. 32 THE COMMONWEALTH OF AUSTRALIA. At an Intercolonial Conference in the summer of 1880-81 the usual variety of matters had been discussed, and it was clear that the Colonies were completely at issue upon the tariff. Sir Henr}^ Parkes, however, chose the occasion for submitting a series of resolutions on the subject of federa- tion, and laid before the Conference a Draft Bill which he proposed should be introduced in the several Colonial Legis- latures. The resolutions affirmed that the time was not come for the construction of a Federal Constitution with an Australian Federal Parliament ; that the time was come when a number of matters of much concern to all the Colonies might be dealt with more effectually by some federal authority than by the Colonies separately ; that an oro-anization which would lead men to think in the direc- tion of federation and accustom the public mind to federal ideas would be the best preparation for the foundation of federal government; and that the Bill framed should be the forerunner of a more mature system. The resolutions were discussed and the Bill considered, but nothing came of it, A proposal of Sir Graham Berry (Victoria) that the Federal Council should be endowed from the sale and occupation of the public lands of the Colonies did not tend to encourage confidence in the disinterestedness of Victoria's zeal in the federal cause. The scheme which had fallen flat in 1881 was revived in the Convention of 1888. On the motion of Mr. Samuel Griffith (Queensland) it was resolved: " That it is desirable that a Federal Australasian Council should be created for the purpose of dealing with the followino' matters : — " 1. The marine defences of Australasia beyond territorial limits. " 2. Matters affecting: the relations of Australasia with the islands of the Pacific. HISTORY OF AUSTRALIAN FEDERATION. 33 " 3. Tlie prevention of tlie influx of criminals. " 4. The reujulation of quarantine. " 5. Such other matters of general Australasian interest as may be referred to it by Her Majesty or by any of the Australasian Leo-islatures." A conunittee was appointed to draft the necessary Bill ; and on the report, a Bill was approved on the motion of Mr. Samuel Griffith " That tliis Convention, recoo-nizino- that the time has not 3^et arrived when a complete federal union of tlie Austral- asian Colonies can be attained, but considering that there are many matters of general interest with respect to which united action would be advantageous, adopts the acconipanj-- ing Draft Bill for tlie Constittition of a Federal Council as defining the matters upon which in its opinion such united action is both desirable and practicable at the present time, and as embodying the provisions best adapted to secure that object so far as it is now capable of attainment." In 1884, all the Colonies of the Australasian group (including Fiji) except New South Wales and New Zealand adopted addresses praying for legislation on the lines of the Bill, and in August, 1885, the Federal Council of Australasia Act received the Roj^al Assent. The time from 1863 to 1883 is the time of Intercolonial Conferences ; and not fewer than ten such Conferences had been held with a \iew to uniform action in various matters of common concern. Postal and telegraphic connuunieati(Hi and tlie navigation of the Australian coasts urgently calk-d for agreement. As a result of a Conference in 1867, New Soutli Wales passed an Act proposing to create a Federal Council to carry into effect resolutions as to ocean mail service. At one time the Colonies were supporting in rivalry three lines of .steamers, and instead of the public getting the advantage of competition, letters were detained 34 THE COMMONAVEALTH OF AUSTRALIA. in tlie several Colonies for tlie proper line. As we have seen, the withdrawal of the Imperial forces brought defence into the programme in 1873, and in the same year the Pacific question was tirst discussed. In the early years, the land system, the goldfield regulations, and the transporta- tion of convicts to Western Austi'alia are discussed. The early importance of uniform land laws has been referred to ; and in later times there was some disposition to regard the vast area of unappropriated lands in several of the Colonies as an Australian asset.^ The anomalies and scandals of the defective administration of the law through inability to co-operate in the service of legal process and the enforcement of judgments were ventilated from time to time. The inconvenience of carrying appeals to England was from early times the ground of a demand for a General Court of Appeal for Australia. South Australia and Vic- toria were for some years active in promoting the establish- ment of such a Court, and in 1861 South Australia found a sympathetic Secretary of State in the Duke of Newcastle. It was not until the Conference of 1881 that the matter passed beyond the stage of discussion, and a Bill was agreed to, which, saving the Prerogative, provided for an Aus- tralian Court of AjDpeal. But it was entirely in accordance with custom that the matter should end there. The tariff as a subject of conference has been already considered ; and lAs witness Sir Graham Berry's proposal in the Conference of 1881. At the first meeting of the Federal Council a proposal was made that 50,000,000 acres of the waste lands of Western Australia should be ajjpropriated to form a fund for defence purposes ; and Western Australia — which had not then received responsible government— was not unfavourable to the plan if she could secure a federal guarantee for the £5,000,000 required for the construction of a transcontinental railway. At the Federation Conference of 1890, it was suggested that the unsettled territories of Queensland, South Australia, and Western Australia should be made federal, and Sir Henry Parkes spoke of "the immense advantage to these Colonies themselves if four or five new Colonies were cut out of their vast and unmanageable territories." HISTORY OF AUSTRALIAN FEDERATION. 35 the other principal matters suggested for joint action were the regulation of Chinese immigration, and the suppression of another " undesirable immigrant," the rabbit. The failure of intercolonial Conferences and its causes are referred to by Mr. Service in the passage cited above. Tlie Conferences were indeed a valuable means of educating opinion amongst politicians as to the need of some closer and permanent union of the Colonies. But as a practical method of getting business done they were almost useless. First, there was the difficulty of securing assent to a Con- ference at all. If the matter to be settled was a competing claim on the part of two Colonies, as in respect to rights in tlie River Murray, or the adjustment of border duties, the party in possession, who had something to lose and nothing to gain, was well enougli satisfied witli the status quo. Then time and place to suit tlie Governments of seven or eicdit Colonies — for New Zealand and Fiji wen- interested members of the Australasian group — formed another ob- stacle ; and the common action aimed at seemed a long way oflf when a prompt answer, or any answer at all, to an invitation to Conference was by no means a common cour- tesy. When after months of correspondence the Conference assembled, it would be found that some Colony whose presence was of importance could not send representatives. As a Conference ol' States, the meeting had all the marks which distinguish such a body from the deliberative assembly of a nation. Every delegate was charged tirst and foremost with the promotion of the interests of his own Colony : the Conference was, in fact, a " Congress of ambassadors from different and hostile interests, which interests each must maintain as an agent and advocate against other agents and advocates." 'I'li(> vote was taken by States, so that the smallest Colony had e(jual voting power with the greatest. This, however, was of small importance, because the majority 36 THE COMMONWEALTH OF AUSTRALIA. had no power to bind the minority ; the dissent of a single Colony prevented Australia from speaking with one voice to the Home Government, and was often fatal to effective action in matters within the powers of the Colonies them- selves. Nor did unanimity in council, even when it was obtained, by any means ensure unanimity in action. The delegates were not plenipotentiaries ; they had in most matters no power to bind ; they could only bear a report and offer advice to their principals. The neglect of a Colony to carr}^ out the measures agreed upon was itself calculated to promote ill-will and to give rise to accu- sations of bad faith, which would have been more serious had not failure been so much the rule as to count amongst the things expected. It was said by Mr. Service in 1888 tliat of twenty-three subjects discussed in the Conferences not more than three liad been dealt with effectively, and of those agreements which required uniform legislation not one had been carried out. When the matter involved communi- cation witli the Home Government, the presentation of a resolution to the Secretary of State was but tlie beginning of negotiations which liad to be carried on with every member of the group, and which rarely failed to disclose differences of opinion amongst the Colonies. The proposed amendment of the law concerning fugitive offenders may serve as an example. In 1867 the Conference had passed a resolution calling upon the Home Government to enlarge the jurisdiction of the Colonies in criminal matters. The Sec- retary of State pointed out that tlie differences in the criminal law of the various Colonies presented certain diffi- culties, and invited suggestions, and particularly a draft Bill, for the best mode of giving the powers required. Some Colonies were in favour of* one course, others proposed another; some did not take the trouble to answer the letters of the Colonial Office. Three years delay would have HISTORY OF AUSTRALIAN FEDERATION. 87 taxed the patience of a more sympathetic Seci'etary tlian Earl Granville, and in 1870 the Minister announced the decision of Her Majesty's Government not to proceed further in the matter, on the ground of "the want of unanimity of opinion both as to the proper mode of proceeding and as to the scope of the proposed legislation." Called into existence by the pressure of external condi- tions at a time when the commercial policies of the Colonies were unfavourable to complete union, the Federal Council was no more than an attempt to provide a remedy for the most obvious of the defects of the intercolonial Conferences. A Constitutional body could be summoned ; a Conference was merely invited. The Conferences met at irregular inter- vals ; the Council was to meet at least once in every two years. A Conference could only recommend legislation; the Council could make laws. A Conference had no corporate existence ; the Council was a permanent body, and under the powers conferred by the Act (sec. 34), it proceeded at its first meeting in 188G to appoint a Standing Committee to act out of session, which should, through its Chairman, com- municate with the Secretary of State. Thus tlie Council lightened the burden of negotiation witli the Imperial Government. The functions of the Council were mainly deliberative and advisory ; above all things it was to have been the articulate voice of Australia. The Icijislative function was subordinate ; federal judiciary or executive there was none. Altogether, the Federal Council of 1885 fully merited the description applied by Sir Henry Parkes to liis scheme in 1881 — "an unicjue body" "formed upon no historical model." In constitution the Council was modelled on the Confer- ences. The members of the Council were the Colonies, and while the Council itself had a permanent existence, member- ship was purely voluntary and terminated at pleasure. SS39.3 38 THE COMMONWEALTH OF AUSTRALIA. Queensland, Victoria, Tasmania, and Western Australia were the only constant members, and in 1891 Western Australia w^as unrepresented. Fiji was represented only at the first meeting of the Council, and South Australia withdrew from membership after a single session. But more serious was the fact that New Zealand and New South Wales never became members at all. Sir Henry Parkes was in England when the Convention of 1883 adopted the scheme, and when he returned to New South Wales joined forces with those who were opposed to federation in any form. In 1881 Sir Henry Parkes had been one of those who believed that the great thing was to get an union of some sort as the founda- tion of a more complete union in tlie future. In 1884 Sir Henry Parkes believed that the Council would impede the federal movement ; and his "unique body" had become such a "rickety institution" that to join it would be to make a " spectacle before the world which would cover the country with ridicule." The representatives of the Colonies in the Council were delegates, nominated and not elected ; until 1895, when the representation of each Colony was increased, they were always Ministers or Ministerial supporters. Save in a few matters the legislative powers could be exercised only on the initiative of the Legislatures of the Colonies. Every j)ower of the Council was restrained by the fact that it could neither raise nor appropriate revenue ; even its own expenses had to be provided for in the budgets of the Colonies. Lord Derby, well aware of the difficulty of settling Colonial contributions even when the Colonies were ready to provide money, had urged that the Council should have jDOwers of expenditure; but the Colonies would not hear of it. The power of the purse must lie in a body chosen b}' popular election, and in such a body the equal representation of communities of very unequal powers of HISTORY OF AUSTRALIAN FEDERATION. 39 contribution would be impossible. Financial powers would liave involved the creation of an assembly in whicli the Colonies would have been represented according to their population ; and the claims of equality of states would have involved the establishment of a Second Chamber. The expenditure of money would have required an executive. But this would have been exactly that complete federal union for which, according to the Convention of 1883, the Colonies were not ripe, and for which the Federal Council was only to prepare the way. Sir Henry Parkes was right when he said that the Council could not by any mere pro- cess of expansion undertake the subject of national defence ; those who would cjive a constitution to a nation must build anew. Changing membership and the hostility of New South Wales prevented the Council from becoming an efficient instrument even for its limited purposes. After 1895 the Conference of Premiers overshadowed the Council in dignity and importance, while for co-operation in special matters — military, marine, postal and statistical — there were frequent Conferences of officials. The best that can be said of the Council — but that is not a little — is that far from exhibiting a natural jealousy of schemes which involved its own extinction, it did irood service in fostering the cause of national union. The next step in the federal movement is connected with the subject of defence. At the Colonial Conference, held in London in 1887, important conclusions were arrived at, both as to naval and military defence. In regard to the former, an agreement was come to between the Imperial Government and the Australasian Colonies whereby tin- latter were to contribute the sum of £12(3,000 per annum for the provision of the Australian Squadron. The agree- ment was ratitied by Acts of the Legislatures of each of the Colonies and by the Imperial Parliament in the Imperial 40 THE COMMONWEALTH OF AUSTRALIA. Defence Act 1888. As to military defence, it was agreed that there should be a periodical inspection of the Austral- asian forces by a General Officer of the Imperial Army. The further proceedings concerning this inspection them- selves offer an interesting illustration of the futility of all attempts at concerted action by the divided Colonies. Imme- diately after the Conference, a correspondence began,^ which soon developed the usual differences of opinion, and Sir Henry Parkcs on behalf of New South Wales withdrew from the arrangement altogether. At last, the Imperial Government undertook to bear the cost of sending Major- General Edwards, the officer commanding the forces in China, to report on the defences, and in May, 1889, the offer was accepted. The report was presented in October, 1889, and was virtually a recommendation of the federation of the Colonies for purposes of defence, and as one incident of defence, of the establishment of a common gauge for the railway system of Australia in place of the existing three gauges by which communication was impeded. Sir Henry Parkes at once made the report the basis of a j^ropaganda, and while there is room for great difference of opinion as to where tiie balance would lie in taking account of Sir Henry Ptirkes's activity in the matter of federation, liis efforts at this time to arouse public interest must be accounted a great national service. He had difficulties to encounter, botii in his own Colony and in other Colonies. Victoria was anxious that New South Wales 'should make trial of the Federal Council ; but Sir Henry Parkes would have none of it. Believing that the time was ripe for consoli- dating the Australias into one, he invited each of the other Colonies to appoint through their Legislatures six repre- sentatives, who he suggested should be chosen equally from both sides in j^olitical life. In the end he consented to a ^ Victorian Parliamentary Papers, 1SS9, vol. iii., p. 605. HISTORY OF AUSTRALIAN FEDERATION. 41 Conference which should meet for purposes of preliminary consultation merely ; and on 6th February, 1890, a Confer- ence of the seven Colonies met at Melbourne. The true purpose of the Conference was, in the words of a delegate, to " decide whether there is such a wave of public opinion through these Colonies that it has removed the (juestion from the mere sentimental airiness in which it has existed for some years past, and lias brought it into the region of practical politics." It was moved by Sir Henry Parkes, seconded by Mr. Alfred Deakin, and unanimously resolved that " the best interests and future pi'osperity of the Aus- tralasian Colonies would be promoted by an early union under the Crown, and that the time was come for the union of these Colonies under one Legislative and Executive Government on principles just to the several Colonies." The members of the Conference pledged themselves to endeavour to induce their Legislatures to appoint delegates to a National Australasian Convention, empowered to con- isider and report upon an adequate scheme for a Federal Constitution ; and the Conference resolved that such a Con- vention should consist of not more than seven members from each of the self-20veriiin. 56.3. 88 THE COMMONWEALTH OF AUSTRALIA. people within the meaning of the Constitution (sec. 53), because expenditure is cliarged on the Consolidated Fund which is legally the property of the Crown.^ Now we are warned in the comminatory language of Coke against any attempt at the severance of the bodies of the Kinof. If nothing less than the Athanasian creed will serve the turn of those who distinguish between a body natural and body politic of the King, what shall be his who sees not one body politic, but several bodies politic within the Empire invoking the King's name ? And j^et there is no escape from the fact that political developments have, not for the first time, run away from legal theory. The Federal Governments of Canada and Australia present us daily with the need for recognizing Dominion and Pro- vince, CojnmonweaWi and State as separate juristic entities, which lip service to the unity and indivisibility of the Crown can only obscure. The High Court of Australia very early gave expression to this fact when, in the Mimicipal Council of Sydney v. ConimonweaWi of Australia^' it declared that " it was manifest from the whole scope of the Constitution that just as the Commonwealth and the States were regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown as representing those bodies politic was to be regarded not as one but as several juristic persons." Practically, the Courts in England have met the same difficulty in the same way when they have held that claims against Colonial Governments, though legally claims against the Crown, cannot be pursued in England against the Crown under the Petitions of Right Act, an Act which they have construed as inapplicable to claims which are properly \See L.Q.R., vol. xx., p. 354. -(1904) 1 C.L.R. 20S. This cloctiine is re-affirmed in The King v. Sutton, (190S)5C.L.R. 789. THE CROWX IX THE COMMONWEALTH. 89 provided for out of the revenues of some part of the King's dominions other than tiie United Kincfdom.^ The more recent case of Williams v. Hoivarth- seems to point in the opposite direction. That was a claim pursued in New South Wales against the New South Wales Government, sued in the name of a statutory defendant, and was for an alleged balance of pay due to the plaintiff in respect of military service in South Africa. The New South Wales Government had engaged with the plaintift' to pay him 10s. a day, the Imperial Government paid him 4s. 6d. a day, and the question was whether in ascertaining the balance due from the New South Whales Government, that Government was entitled to take credit for the sum paid by the Imperial Government. The Privy Council held that it was so entitled inasmuch as the claim was against the Crown, and the payment made by the Imperial Government was a payment by the Crown, and that the distinction between Imperial and Colonial Government was immaterial. In the circum- stances of the particular case, this may Avell be so. The very nature of military service in time of war makes it difficult to sever the authority to which it is rendered, and without insistincr that the one government was the agent or the guarantor of the other in a strict sense, it was tolerably clear that the contract was merely that the plaintift" should have 10s. a day for his service. Practical difficulties must frequently arise under Statutes from which, as not beinfj mentioned therein, ''the Crown" claims exemption ; or, " the Crown " being mentioned, a Government claims that it is not comprehended within the terms of the imposition ; or, more than one Government ^ffohne'iv. Reg., (1861) .SI L..T. ("li. oS ; Pahntr \. Jlutrhiusoii, (1SSI)6 A.U. 621 ; Frith v. 7'he QmfM. (1S72) L.R. 7 Ex. 365. See also Doxt v. Secretary of State, (187.")) L.R. 19 Eq. 509 ; Reiner v. Salinhury, (1876) 2 Ch. Div. 378 ; and Strachan v. Commou wealth, (1904) 4 C.L.K. 453. ='(1905) A.C. 551. 90 THE COMMONWEALTH OF AUSTRALIA. claims the benefit of the Statute. Tlie question may, of course, arise, and has in fact arisen in the interpretation of Imperial Statutes. In 1879 the House of Commons adopted the report of a strong select conunittee to the effect that by liis appointment as Attorney-General for Victoria — then as now a self-governing colony — Sir Br}' an O'Loghlen, member for County Clare, had incurred the disqualification attaching to an office of profit under the Crown.^ The Supreme Court of New South Wales had in Attorney - General v. Collector of Customs- to consider whether the Crown in right of New South Wales was liable to pay duties of customs on the import of goods for the use of the Government, and they held that whether or not the Com- monwealth Parliament had poiuer to impose such a liability on the State, they had not done so, because the Crown could only be charged by express words, and no such words were found in the Act of the Commonwealth Parliament under con- sideration. After the matter had been for some years the subject of difference of opinion between the Commonwealth and State Governments as to the application of the general terms of the Customs Acts to the Crown as bearing theper- sona of the States, the High Court definitely determined in The King v. Sutton-' that tlie rule which exempts the Crown from the operation of Statutes in which it is not named applies only to the Crown considered as the executive authority in relation to the Statute in question, and that, accordingly, the Connnonwealth Customs Acts must be understood to extend to the States Governments, though not expressly named therein. Stress was indeed laid on the fact that the Com- monwealth was exercising an exclusive power, but the ^Hansard's Debates (1879), vol. 245, p. 1104. See also Constitution, sec. 44 (iv,) ^1903) 3S.R. (N.S.W.) 11.5. ^(1908) 5C.L.R. 789. THE CROWX IX THE COMMONWEALTH. 91 principle appears to be nothing short of that stated by- O'Connor J. (at p. 856) that the rule of construction in favour of the King must be limited to the King as repre- senting the community whose legislation is under considera- tion, and cannot be applied to the King as representing some other connnunity. The Constitution raises many questions as to the powers of the Crown which will have to be considered in connection with that department of government with which they are innnediately associated. Two of them, which are of first rate importance, may bo indicated here. The first is the power of the Crown to disallow Acts of the Commonwealth and the State Parliaments. This power, of undoubted value as enabling the Crown to protect Imperial interests, has assumed an unexpected importance from the significance attached to it by the Supreme Court of Victoria,^ and apparently by the Privy Council,^ as a means of preventing either State or Commonwealth from embarrassing the activit}^ of the other. This phase of the power of the Crown must be considered later in connection with the vexed question of the " innnunity of instrumen- talities." The other matter is the power of the Crown to entertain appeals from the High Court, and from State Courts in Constitutional matters, and the possibilities of conflict between the Priv}' Council and the High Court in the interpretation of the Constitution. This matter must be considered in connection with the judicial power of the Commonwealth. > Wollmtoji's Case, (inO'2) 2S \".i,.i;. .Ssr. = Webb V. Otillnm, (1907) A.C. bl. [93] PART III -THE ORGANIZATION OF THE COMMONWEALTH GOVERNMENT. CHAPTER I. THE DISTRIBUTION OF POWERS IN THE COMMON- WEALTH GOVERN.MENT. The Constitution follows the plan of the United States Constitution in eonunitting; the functions of orovernnient — legislative, executive, and judicial — to three separate de- partments. " The legislative power of the Commonwealth shall be vested in a Federal Parliament" (see. 1). "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good govern- ment of the Commonwealth with respect to " the matter.^ enumerated (sec. 51). "The executive power of the Commonwealth is vested ii^ the Queen, and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of tliis Constitution, and of the laws of the Commonwealth" (sec. 61). 94 THE COMMONWEALTH OF AUSTRALIA, " The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parlia- ment creates, and in such other Courts as it invests with federal jurisdiction " (sec. 71). The allotment of functions by the Constitution is thus not merely an allotment between State and Commonwealth; it is also an allotment amongst the organs of the Common- wealth Government. The Constitution does not commit subjects to " the Commonwealth " in general ; it designates certain organs which are to exercise particular kinds of power over the subjects committed to them. To the Courts belongs the duty of interpretation, and the question then arises how far this distribation of power is subject to a legal, as distinguished from a merely political, sanction. May the Courts for example consider whether an Act of the Commonwealth Parliament upon a subject undoubtedly committed to the Commonwealth Parliament is truly " legis- lative " in nature, or is an assumption of executive or judicial power on the subject-matter ? The form of the separation of powers is copied from the American Constitutions, and in America the separation of powers is uniformly sanctioned by the action of the Courts both in relation to the National and the States Constitutions. Each of the org-ans is restrained to the exercise of that kind of j)Ower which has been committed to it, and a jealous watch is kept upon any trespass by one on the ground of another. But though the doctrine is now thorouglily established in the Courts as an independent principle, the greater number of cases in which the Courts have called attention to the separation of powers has been decided, not on the implied prohibition arising from the separation, but upon express restraints imposed on the Legislature by the Constitution, as the prohibition of bills DISTRIBUTION OF POWERS IN THE GOVERNMENT. 95 of attainder, the deprival of due process of law, or the making of ex post facto laws, and — in the ease of States Legislatures — laws iinpair-ing the obligation of contracts, or infringing the Fourteenth Amendment. Especial care must therefore be taken in the application of American authorities on this subject to a Constitution where these additional restrictions do not exist. In the British colonies this fundamental separation of powers has not existed. As already pointed out, our political doctrine is not that of a sovereign people committing limited powers of government to their agents. Self government has been parliamentary government, and consequently the dis- posal of executive and judicial duties, as well as of sub- ordinate powers of legislation, has devolved upon the organ vested with the general power to make laws ;^ the model of the Colonial Legislature has been the Imperial Parliament, as has been affirmed on every opportunity by the Privy Council.- 'Cf. (Jooley, Con>ititutio7ial Limitation. 'i, sec. 90. •'E.cj. Hodges V. The Qtieev, 9 A.C. 117 ; Webb v. Oultrim, (1907) A.C. 81. Canadian Coui'ts have, however, in several instances dwelt ujion the purely legislative powers of the Provincial Legislatures and ha\e considered that the executive and judicial powers are implicitly withheld {vide Lefroy, Legis/atire Poiier in Canada, p. 1'2.5). In tiic Piivy Council itself there have been some suggestions that the question " What is legislation?" is one for judicial consideration. Thus, during the argument in AllorueyGenfral for How/ Konr/ v. Kivok-a-Sin;/ (L.R. 5 P.C. 179), Mellish L.J. said that "It was assumed in Phillips v. Eyre that an Act of Attainder woukl he void," and in the leading case of J\'. v. litirah (3 A.C. SS9, 904), where one of the questions was as to the power of the Governor-General in ('ouncil in India to remove a certain area from the jurisdiction of the High Court, Lord Selhdrne, in delivering the opinion of the IJoard, uses l.iuguage which, while not unambiguous, suggests that the question whether what has been done is legislation is a matter for the coii.'iidcration of the Court. "If what has been done is legislation witliin the general scope of the aflirmative words wliich gave the power, and if it violates no express condition or restriction by whicli that power is limited (in which category woulil. of course, be included any Act of the Imperial Parliament at variance witii it), it is not for anj' Court of Justice to inquire further, or to enlarge construc- tively those conditions and restrictions." In the caweof Fielding v. Thoiuan, 96 THE COMMONWEALTH OF AUSTRALIA. It ina}^ be assumed, then, that the legislative character of Acts of the State Parliaments in Australia is not submitted to the consideration of Courts of law ; and that the separa- tion of powers is in the States no more than a rule of expediency subject to political sanctions. These sanctions must, it is submitted, be found in the State itself. In the case of tlie American Colonies, the assumption of judicial power by the assemblies was a common cause for the exer- cise of the Crown's power of disallowing Statutes.^ It would still be a proper ground for interference by the Crown in any Colony w^hich is not self-governing ; but in the case of a self-governing colony, it would, it is submitted, be an unconstitutional invasion of the local sphere. In the case of the Commonwealth Parliament it is impossible to avoid the conclusion that the separation of (1896) A.C. 660, a Statute of Nova Scotia had conferred upon the House of Asseuiblj' the character of a Court of record with inherent power to punish for insults or libels on members during session, and had provided that members who were present and voted on the question of the arrest of an offender, siiould enjo}' the immunities of a Court of record. In holding that the Act was valid, the Judicial Committee said : — "It may be that the words if construed literally and apart from tlieir context would be ultra vires. Their Lordsliips are disposed to tiiink tiiat the Legislature could not constitute itself a Court of record for the trial of criminal offences. But read in the ligiit of other sections of the Act, and having regard to the subject-matter with which the Legislature was dealing, their Lordships think that these sections were merely intended to give to the House the powers of a Court of recoid for the purpose of dealing with breaches of privilege and contempt by way of committal. If they mean more than this, or if it be taken as a power to try or punish criminal ofifences otherwise than as an incident to the protection of their proceedings, sec. 30 cannot be supported." While the terms used here are plain enough, there is some difficulty in knowing whether in their Lordships' opinion the suggested vice lies in the assumption of judicial power instead of conferring it upon some Court by virtue of the Provincial legislative power to " constitute, maintain, and organize Provincial Courts, both of civil or criminal jurisdic- tion " ; or in the invasion of the exclusive power of the Dominion Parlia- ment to deal with "Criminal Law." ^See Chalmers' Opinions of Emiup.nt Laivytrs, vol. ii., passim. For instances of the exercise of judicial powers by the Colonial Legislature of Massachusetts, see Harvard Law Jievieic, vol. xv., p. *iOS. DLSTRIBUTIOX OF POWERS IX THE GOVERNMEXT. 97 powers was intended to establish leoal limitations on tlie powers of the organs of government, and that the Courts are required to address themselves to the problem of defining the functions of tliose orofans. The question then becomes important : What are the propei- conclusions from this separation ? " The difference between the departments undoubtedly is that the Legislature makes, the executive executes and the judiciary construes the law."^ A purely logical determina- tion of the functions would require us to consider the nature of law as a rule of coiichict. We should insist that because the Legislature has power only to make law, its enactments should be marked l)y generality in their application to persons and circumstances, and should be wholly 2'^'^ospective in their operation. We should insist that, because the Legis- lature alone has power to make law, it must express a rule of sufficient ch'Jiniteness and certainty to be applicable in the particular case without substituting the discretion of the administrator or the Judge for its own.- 3Iany acts would fail, not because they actually encroached upon the executive or the judiciary, but simply because they did not make law according to the juristic notion of law. A divorce pronounced by the Legislature in a country where there is no general law of divorce or for a cause not recognized by that law, is a familiar example. . Another illustration may be taken from the provisions of the Commonwealth Customs Act 1901, whereby, amongst " prohibited imports " are " all goods the importation of which may be prohibited by proclamation " (sec. 52 (See Part V., CImpter I., " The Powers of Colouial Legislatures." ^Tliia question is now (May, 190!)) decided by llie High Court in tlic opium iniportiition prosecutions — h'. v. AhWaydud E. Merchant — in favour of tiie validity of tiie prohiljilions. See Addendum. *See Todd's Parliamenlary Oovemmenl lu Enyland, vol. ii., pp. 34.) et seq., for reference to the literature of the subject ; Laiu jRevietc 1851-2, vol. 15; and Clark's Austrcdian Consdtnlional Laic, p. 2*2ri. 102 THE COMMONWEALTH OF AUSTRALIA. Lealiy} The experience of the United States shows that in modern times the constitutional separation is important principally as guarding the judicial sphere against encroach- ment by the Legislature ; and it is this subject to which the American cases are almost exclusively addressed.- This must be considered more in detail under the head of " Judicial Power." But it is also well established in the United States that no power can be committed to tlie Courts which does not fall witliin the ambit of the Judicial Power, as, for example, the duty of giving advisory opinions.^ The department of judicial power, however, is not absolutely limited to the act of adjudication ; it may embrace matters incidental to the administration of justice. In spite of the rule against dele- gation. Statutes giving power to the Courts to make rules relating to their own procedure have been sustained,* and in the Commonwealth large powers of making " Rules of Court " liave been conferred upon the justices of the High Court.'' How far the justices of a Court as i')ersoniU de- signate can be made the recipients of a non-judicial power seems not to be settled in America ; but it is clear that powers unconnected with the performance of judicial func- tions cannot be exercised by a Court. The Preponderance of the Parliament. — The distri- bution of powers by the Constitution is not inconsistent with the preponderance of the Parliament in the Government of the Commonwealth; the tradition of the identity of self- MI904) 4 S.R. (N.S.W.) 401 ; reversed (1904) 2 C.L.R. 139. "See Cooley, Conslitutional Limitations, chapter v. ^See Tliayer, Cases in Constifutioiial Lun^, p. 176, and In Ike Matter of the Application of the Senate, (1865) 10 Minnesota 78 ; Thayer, p. ISI. ■•See Waj/man v. Southard, (1825) 10 Wheaton 1 ; Bank v. Halstead, ib. 51. ^Judiciary Act 190,3, sec. 86 ; Hir/h Court Procedure Act 1903, sees. 32-34 ; Judiciary Act 1906. DISTRIBUTION OF POWERS IN THE GOVERNMENT. 103 government with Parliamentary orovernment remains, and the dominant fact in the Constitution is a transfer of powers previously exercised in the several Colonies by the respec- tive Parliaments to a Parliament which represents the whole. In addition to that kind of control over other functions which the power of making laws necessarily carries, the Parliament is expressly criven considerable powers of control over the executive and judiciary. Parlia- ment may make laws on any matter incidental to the execution of poAvers vested by the Constitution in any of the organs or officers of the Conunonwealth (sec. 51, ai-t. xxxix.). The organization and regulation of the executive is almost exclusively in the hands of Parliament, wliich fixes the number of Ministers (sec. 65) and controls the appointment and removal of all officers in the public service (sec. 67). Cabinet Government is everywhere a matter of convention rather than of law, but it is more clearly ad- verted to in the Connnonw'ealth Constitution than in the Constitution Act of any of the Colonies (sec. 64). The financial necessities which secure Parliamentary control over the working of the public departments will, of course, exist in the Commonwealth as elsewhere ; and the Constitution does not leave the assembly of Parliament to tliose neces- sities, but recjuires that it shall meet every year and at such times that twelve months shall not intervene between sessions (sec. 6). Even in tlie judicial department the estab- lishment and jurisdiction of Courts other than the Higli Court of Australia are completely controlled b}' Parliament. The provision as to the tenure of Judges (sec. 72) intended to secure them against arbitrary interference by either the Executive or the Legislature, probably rather indicates the course to be followed by the two Houses of Parliament in the exercise of the power of removal, than imposes any legal limits on their power to remove at will. In the 104 THE COMMONWEALTH OF AUSTRALIA. important matter of the amendment of the Constitution, the power of initiation lies in the Parliament alone, and is not, as in the United States, shared with the States Govern- ments, or, as in Switzerland, with the people. [105] CHAPTER II. THE PARLIAMENT. By sec. 1 of the Constitution, " Tlie Parliament of the CommonAvealtli " consists of the " King, a Senate, and a House of Representatives." The Commonwealth thus fol- lows the Constitution of Canada (BritiyJt JVortJt America Act 1867, sec. 17) in adapting to its institutions the legal theory of the composition of Parliament.^ There is a singular diversity of practice through the British Dominions in respect to the formal I'elation of the Crown to the Legislature. In non-self-cjoverning Colonies it is the Governor wJio lejjislates witli the consent of his Council. In the self-oovernincj Colonies the transition to "Parliamentary" government is .sometimes marked hy a change in the form of legislation ; acts which were previously made in the name of the Governor are now made in the name of the Crown.- Others continue to enact in the name of the Governor, with the consent of the Chambers;'^ while in the case of New Zealand, legisUition proceeds in the name Milackstone, Com. 1, p. 1.").'^: — " Tlie cdiisiiIucmii parts of a parliament are .... llie King's inajeaty .... and tlie three estates of the realm." ^E.g. Canada (Dominion and Province), New South Wales, Victoria, Western Australia, Queensland. Mr. Justice Clark ^ives some reasons against this practice : Studies in AuHtriUian Coiiitiliitioiiul' Lair, pp. 309 it xeq. '^ E.ij. South Australia, Tasmania, Cape of (lond Hope. 106 THE COMMONWEALTH OF AUSTRALIA. of the General Assembly, of which the Governor is made a part. In tlie Dominion of Canada, though the Constitution expressly declares that the Parliament consists of the Queen, the Senate and the House of Commons, it also lays down the legislative form, by vesting the power to make laws in the Crown, by and with the advice and consent of the Senate and the House of Commons (sec. 91), It is hardly to be supposed that these several forms indicate any real difference of power; the plenitude of legislative power has been asserted as unequivocally in the case of those Legislatures of which the Crown is no immediate part, as where the legislation proceeds in the name of the Crow^n.^ In the Commonwealth, not merely is the Crown a part of the Parliament, but in that Parliament so constituted is expressly vested the legislative power of the Commonwealth (sec. 1), and the power to make laws is conferred not upon the Crow^n, but upon " The Parliament." The Senate and the House of Representatives are thus not merely 'partes consentientes ; they are not less than the King himself, jyartes agentesr Accordingly, Parliament had to select a form of enactment which should appropriately express the constitutional power committed to it; and after some debate^ the following was adopted : — " Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia." A. — The Governor-General. — A Governor-General ^E.g. R. V. Burah, 8 A.C. 8S9 (Governor-General of India in Council) ; Hodqe V. The Queen, 9 A.C. 117 (Lieutenant-Covernor and House of Assembly of Ontario) ; Dominion ot Canada v. Province of Ontario, (1898) A.C. 247. -The distinction in the case of the English Parliament forms part of the argument of Oliver St. John in the Ca^e of Ship-money, 8 State Trials, at p. 863. 3See Post and Telegraph BUI 1901, P.D. pp. 1192 et ■ieq. THE PARLIAMENT. 107 appointed by the King is " His Majesty's Representative in tlie Commonwealth " (sec. 2) " with such powers and func- tions of the King as His Majesty shall be pleased to assign to him." The Constitution, however, expressly authorizes the Governor-General to exercise such of the powers of the Crown as relate to the Parliament and to leofislation. There is thus some duplication of sources in the powers of the Governor-General which, with the nature of the office, will be considered under the head of the Executive. The following are the powers and duties of the Governor- General in respect to "the Parliament which correspond M'ith the prerogative in England : — 1. He summons, prorogues and dissolves the Parliament. This is provided by sec. 5 ; but the powers purport also to be granted by the Letters Patent. The Parliament is to be suumioned to meet not later tlian 30 days after the da}'' appointed for the return of the writs, and there is to be a session of the Parliament once at least in every year, " so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sittincr in the next session" (sec. G). Tlie first Parliament of tlio Commonwealth was to be sumnioned to meet not later tliau six months after the establishment of the Commonwealth; it did in fact meet on 9th IMay, 1901. 2. He reconnnends to the House in wliicii lliu proposal originates votes resolutions or proposed laws for the appro- priation of revenue or monies (sec 5C). 3. He assents to legislation in the King's name (sees. 58, 128). In the exercise of these powers the CJovcrnur-Grneral will, as to the second, neces.sarily, as to the first and third, gener- ally, but not necessarily nor always, act i>n the advice of his Ministei's. As to the sunnnonincj of the I'arliament. lie is in this as iu other matters the guardian oL' ilic law and 108 THE COMMONWEALTH OF AUSTRALIA. should see that it meets at the proper times. As to the power of dissolution, that has always been tlie most difficult and delicate of a Governor's powers in a self-governing Colony, and is the one matter in whicli Governors alwaj^s exercise a personal discretion which not infrequently leads them to refuse a dissolution. The principle which has com- monly been acted upon is that, with the short Parliaments in the Colonies, a dissolution should, save in special circum- stances, be resorted to only wlien it is clear tliat in no other waj^ can government be carried on.^ The provisions of sec. 58 relating to the Royal Assent to Bills are taken from the Br'disJt North America Act 1867, sec. 55, with an important difference. The Governor- General is to exercise his powers of assenting, or withholding or reserving for the Royal Assent, " according to his discre- tion, but subject to this Constitution." "According to his discretion " raises the consideration of two matters by which the discretion of the Governor-General may be guided — the Royal Instructions, and the advice of his Ministers. As to the Royal Instructions, it has been doubted whether a law assented to by a Governor would not in all cases be valid notwithstanding that such assent was given contrary to the terms of the Instructions. The Conditution Acts of the Australian Colonies, however, made the observance of the Instructions a condition of validity;- though as the Instruc- tions themselves gave the Governor a discretionary power to assent to any Bill in case he should be of opinion that an »See the whole subject discussed in Todd's Parliamenlary Government in the Colonies, cap. xvii., part iii., and especially the summary at pp 800-803. See also Keith, lics/tonxible (•'ocerinnfut in the Dominions, pp. 43 siq. On the two occasions on wliicii an extraordinary dissolution has been advised by the Ministry of tlie Conunonwealth— the defeats of the Watson Ministry in 1904 and the Reid Ministry in KIO.i— it was refused by the Governor- General (see CotnmonireaUh /Parliamentary Debates, 1904, p. 4265 ; 1905, pp. 133, 134). ^See 13 & 14 Vict. c. 59, sec. ll'. THE PARLIAMENT. . 109 urgent necessity existed for bringing it into operation, tlie result was that the non-reservation of a Bill prescribed for reservation by the Royal Instructions only, would not impair its validity. The British NortJi America Act, sec. 55, pro- vides that when a Bill is presented to the Governor-General for the Roj^al Assent^ he shall declare " according to his discretion but subject to the pi'oviaions of this Act, and to Her Majesty's Instructions, either that he assents," &c. The words "and to Her Majesty's Instructions" are omitted in the Commonwealth Constitution, and there is no provision on the subject similar to that in the Constitution Acts of the Australian Colonies. Sec. 58 provides that the Governor- General shall declare his assent, &c., according to his discre- tion " but subject to this Constitution ;" sec. 2, limiting the powers of the Governor-General to such " powers and func- tions of the Queen as Her Majcst}' may be pleased to assign to him," is also " subject to this Constitution." The result so far as the Constitution is concerned appears to be that the Instructions do no more than limit the authority of the Governor-General in an official sense as between himself and the Crown, and tliat a disregard of them would not invalidate an Act actuall}- assented to. If the provisions of the Colonial Lau's Validity Act 1895 be applicable at all they strengthen rather than weaken this conclusion. Sec. 5 of that Act provides : — " No Colonial law, passed witli the concurrence of or assented to l)y the Governor of any Colony, or to be hereafter passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with refer- ence to such law or the subject thereof bj' any instrument other than the Letters Patent or instrument authorizing such Governor to concur in passing or to assent to laws for the peace order and good government of such Colony even thouoh such instructions may be referred to in such Letters Patent or last mentioned instrument." 110 THE COMMONWEALTH OF AUSTRALIA. In the case of the Commonwealth, the authority of the Governor-General, to assent to legislation is derived directly from the Constitution itself and does not depend upon any grant by Letters Patent or other (prerogative) instrument. As a matter of fact, the Letters Patent and the accompanying Instructions do not refer to the subject at all, and any instructions which the Governor-General may have received as to reserving or refusing his assent have not been pub- lished. The Crown has a simple remedy in its own hands in its power to disallow anj^^ Statute (sec. 59). In the exercise of his discretion as to assenting to or with- holding assent from Bills, the Governor-General must regard his duty as an officer of the Imperial Government. He must consult his instructions, published or secret, as to whether the measure is one which he ought to reserve. If it appears likely to involve any Imperial interest, as by specially affecting foreign countries or parts of tlie British dominions beyond the Commonwealth, or if it appears to conflict with any treaty binding the Commonwealth,^ the measure would probably be reserved, unless the Imperial Government had already approved of the principle involved ; modern facili- ties of communication greatly diminish the responsibilities of Governors in these particulars. The Governor-General ought also to be satisfied that prima facie the subject is one over which the Commonwealth has power and that the pro- posed law does not conflict with any Imperial law in operation in the Commonwealth. For this purpose he may receive a report from the Attorney-General ; if the matter is of more than local importance, he may seek the advice of the Imperial Law Officers. Subject to these considerations, it 'On this ground the Customs Tariff (British Preference) Bill was reserved in 1906 and not proceeded with. See Parliamentary Papers 1906, p. 177, and Keith, op. cit., p. 235. THE PARLIAMENT. Ill is submitted that he ought to be guided by the advice of his Ministers.^ In any case where tlie Governor-General assents to a Bill the Crown may disallow the Act within one year, and the law will then be annulled from the day when the disallow- ance is made known (§ec. 59). There is one matter in which the Constitution itself requires that proposed laws shall be reserved. Sec. 74, which gives power to the Parliament to make laws limiting the matters in which leave to appeal to the Crown in Council may be asked, directs that every such proposed law shall be reserved by the Governor-General for the pleasure of the Crown. The minor powers of the Governor- General in relation to the Parliament will be considered with the matters to which they relate. B. — The Senate. — The principal notion underlying the Constitution of the Senate may be gathered from the alter- native names which were suggested for it — tlie House of the States, the States Assembly. Though it differs in many important respects from the Senate in the United States and in the Dominion of Canada, it stands like them for the federal principle in the Constitution. Everj' original State has equal representation in the Senate (sec. 7), a condition which was vigorously assailed in the larger States. This equality can be varied only b}' an amendment of the Con- stitution, and then only with the con.sent of the electors of the State or States whose " proportionate representation " it is proposed to diminish (sec. 128). In the first instance, 'But see Todd, p. 169 : " Wlienever Bills are tendered to tlie (Governor of a Colony for the {)iirj)ose of receiving tlie Royal Assent, he is bound to exer- cise his discretion in regard to the same, and to determine upon his own responsibility iis an Imperial Officer, unfettered by any consideration of tiie advice which he has received from his own Ministers on tiie subject, the course he ought to pursue in respect to such Bills." 112 THE COMMONWEALTH OF AUSTRALIA. eacli State has six members ; but the Parliament may- increase the number. Apart altot^ether from the importance of numbers in relation to tlie character of the body, the number of Senators is important, because the Constitution contemplates that the Houses shall have twice as many members as there are Senators, a provision which establislies a certain balance of power at a joint sitting (sees. 24, 57). As the Senate is to represent the States it is fitly provided that each State shall constitute one electorate, though this is a provision which the Parliament may alter (sec. 7), This mode of constitution may also be regarded as a check upon " localism " in Commonwealth politics ; it is a common complaint of popular assemblies that " they represent the nation too little and particular districts too much." Large constituencies arc in tlie Colonies a feature of the Second Chamber, where that Chamber is elective ; and on the wdiole the anticipation has been fulfilled that from the mode of its constitution, the Senate mio-ht be more " national " than the national Chamber itself. Though federal in constitution, the Senate is, unlike the German Bundesrath, unitary in action. It may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate (sec. 11), Until the Parliament otherwise provides, one-third of the whole number of the Senators makes a quorum (sec. 22), without regard to the manner in which that quorum is com- posed. Questions arising in the Senate are determined by a majority of votes, and the voting is jDcrsonal and not according to States (sec. 23). A condition which the Senate shares with Second Cham- bers and Upper Houses in general is " perpetual existence." Except in the event of deadlocks (sec. 57) it is not liable to dissolution. Its members retire by rotation after six years service (sec. 7), the length of service of a Senator being THE PARLIAMENT. 113 double the legal term of the House of Representatives. By sec. 13 the rotation of Senators was to be determined by the body itself as soon as practicable after its first meeting and after every dissolution (sec. 13), so that half the Senators of each State in the first Senate and ever}'- new Senate should retire at the end of three years service. Accordingl}-, soon after the meeting of the first Parliament in 1001 the Senate adopted resolutions whereby the six Senators representing each State were divided into two classes according to the number of votes received by them at their election, and the class which received the smaller number of votes was to retire at the end of three years.^ By an amendment of the Constitution adopted in 1900, a slight modification in the term of a Senator is made so as to enable this election to be held at the same time as the ordinary triennial election of the House of Representatives.- Whenever the number of Senators for a State is increased or diminished, the Parlia- ment may make sucli pi'ovision for the vacating of tiie places of Senators for the State as it deems necessary to maintain regularity in rotation (sec. 14). The Senate is popular in the mode of its Constitution. The Bill of 1891 followed the United States Constitution in providing that Senators should be directly chosen by the Houses of the Parliament of the several States. In 1S07 there was notliing as to which there was more agreement than that this system should give way to one whiclx secured immediate responsibility to the people. Senators are directly chosen by the people of the States (sec. 7), and the qualifi- cation of Senators and electors is not left to the States to determine, but is uniform witli lliat of inrinbers and electors for the House of Representatives " but in the choosing of senators each elector shall vote only once" (sees. 10, S). ^S''.nate Jouriiali, 1901, p. C^9. ^Constitution .\lteration (Senate Elections), H>on. 114 THE COMMONWEALTH OF AUSTRALIA. Only in the case of casual vacancies is the scheme ot" 1891 resorted to (sec. 15). The provision for filling casual vacancies is curiously complex and minute. The person chosen holds the seat until the expiration of the term of the person whose seat he fills, or until the election of a successor, ■\vliichever first happens. If the State Parliament is not in session when the vacancy is notified (by the President, or if there is no President, by the Governor-General, to the Governor of the State — sec. 21) the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until fourteen daj^'s after the beginning of the next session of the State Parliament, or " until the election of a successor, whichever first hap- pens." The last-mentioned condition of tenure is explained by a provision that "at the next general election of members of the House of Representatives, or at the next election of Senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place until the expiration of the term "^ (sec. 15). By ^Some difficult questions arose in connection with the South Australian election for tlie Senate in 19(IG. A petition was presented against one of the persons returned, Mr. Vardon, and the Court of Disputed Returns (Mr. Justice Barton) sustained the petition and held that the election, so far as concerned that gentleman, was absolutely void. Thereupon the Houses of Parliament in South Australia, being advised tliat this was a vacancy provided for by sec. I'l of the Constitution, proceeded to choose Mr. J. V. O'Loghlin as Senator. Meantime, proceedings in the High Court for a manda7iiu8 to the Covernor of South Australia to issue liis writ for a new election had been taken, but failed on the ground that tlie duty was of a political and discretionary kind, with which the Court could not interfere (T/ie King v. The Governor of South Auitralia, i C.h.lx. 1497). .Mr. Vardcn presented a petition to the Senate against Mr. O'Loghlin's return ; and the Committee of Disputed Returns and Qualiiications, to which it was referred, reported that the vacancy caused by the decision of th Court was not one of those vacancies to which sec. 15 applied, that there should have been a new election, and that the choice of Mr. O'Loghlin therefore Avas ineffectual (IM)., 1907, pp. -1393 et fieq.). The Government moved the Senate to disagree with the report, and eventually (17th October) a compromise was arranged whereby the question was to be remitted to the High Court for consideration, the Cos-erniaent undertaking THE PARLIAMENT. 115 the Senate Elections Act 1903, if at an election of Senators there are both periodical and casual vacancies to be filled, the periodical vacancies shall be filled by those of the per- sons elected who stand hicrhest at the poll, the casual vacancies by the other persons elected. The Parliament may establisli an uniform method of electing Senators (sec. 9), and by the Coininonivealth Electoral Acts 1902-.5 has made elaborate provision in respect to elections for both Houses. In regard to the Senate, the Act, amongst other things, forbids "plumping" by the provision that " the voter shall vote for tlie full number of candidates to be elected" (sec. 150); and also pro- vides that " candidates to the number required to be elected who receive the greatest number of votes shall be elected " (sec. 161). To the present no scheme of "proportionate repre- sentation " has received favourable consideration, and the existing system is, of course, open to the objection that it enables an organized plurality of voters to secure the whole representation, though it has only a small majority of votes, or, even in the case of a large number of candidates, is an actual minority of the electors voting. In case of equality, a casting vote is given to the returning officer (sec. 161). The State Parliaments may make laws governing the times and places of elections for Senators, and, subject to any Commonwealtli law, may make laws prescribing the method of choosing Senators (.sec. !•). In default of any Commonwealth law regulating tlie conduct of Senate elec- tions, the State laws " for the more numerous House of the to introduce legislation to enable tliat L-ourse to l)e taken. See Dispiileii Elections (Uid (Juallffcntio)i'i Act llKjT. The pioceeiliii^s in the Senate on the petition being renioveil into the High Court under liiis Act, the Court held that the vacant y was not one of liiose provi., sec. 33. * Electoral Act, sec. 92. THE PARLIAMENT. 12.3 da3\s.^ The conduct of elections was provisionally governed by the State laws.- It is now regulated by the Common- wealtli Electoral Acts 1902-5. The principal provisions relating to the House are that the elector may not make his mark opposite the »auie of more than one candidate (sec. 158), which excludes any indication of preference ; that the candidate who receives the irreatest number of votes is elected (sec. 164), i.e., no absolute majority is neces- sary; and that the general election shall be held in all places on the same day (sec. 91). The returning officer has a casting but no ordinary vote (sec. 164). A member of the House may resign Ins seat (Const., sec. 37) ; and his seat becomes vacant if for two consecutive months in any session, being without leave of absence, he fails to attend the House (sec. 38). The House, before proceeding to the despatch of business and as often as occasion re(|uires, must choose a member to be Speaker ; and botli tlie Senate and the House, by analogy to the practice of tlie House of Commons, have presented their clioice to the Governor-General.'* The Speaker ceases 'Constitution, sec. 32. -lb., sec. 31. ^At the opening of the first Parliament the Oovernor-fieneral directed the Senate and tlie House to choose a President and Speaker respectively, and indicated that he would appoint a time and place for the persons chosen to be presented for his approval. The President and Speaker duly waited on the Governor-General. The President of the Senate reported that he had received His Excellency's congratulation.s, and that His Excellency had at the President's request confirmed the usual rights and privileges of the Senate (Senate Jourmih 1001, jjp. ."5 and 4). The Speaker of the House reported merely that he had received from His Excellency an expression of pleasure at and confidence in the choice of the House {Vottii and Proceed- ings of Jiepreseiifatirr^ 1901, p. !•). At the second Parliament, in 1904, a ceremony more strictly in accordance with tiie Constitution was adopted by the Governor-General and both Chambers. Tiio President and Speaker were "presented," but not " for the approval" of the Governnr-t^eneral ; and the prayer for the "allowance," and the Governor-Gencrars "con- firmation" of the "usual rights and privileges" were abandoned {Setiate Journals 1904, pp. 2 and 3 ; Votes and Proceedings, pp. 2 and 6). 124 THE COMMONWEALTH OF AUSTRALIA. to hold his office (a) if he ceases to be a member, or (h) if he be removed by a vote of the House, or (c) if he resign his office or his seat (sec. 35). Questions arising in the House of Representatives are determined by a majority of votes, tlie Speaker having a casting but not an ordinary vote (sec. 40). BOTH HOUSES OF THE PARLIAMENT. Qualifications of Electors and Members of the Senate and House of Representatives. — The Constitution assimi- lates these qualifications (sees. 8, 16). Some of the quali- fications are dealt with in the Constitution under the head of " the House of Representatives," others under " Both Houses of the Parliament." In regard to the (jualifications of electors and members alike, it is a strikinof feature of the Constitution that it gives power to the Commonwealth over each ; and this power was accorded in recognition of the fact that it was impossible to regard such matters as purely of State concern. The qualifications of electors and members, therefore, may be prescribed by the Parliament ; and the provisions of sees. 30 and 34 are only until provision is made by the Parliament. The power of the Parliament is, however, limited by con- ditions, of which the first is that the qualification for members of and electors to Senate and House is the same, while as to electors, the provisjpns of sees. 8, 30 and 41 are designed to secure the " democratic " principle that the suffrage shall be of tlie widest, and that no person shall have more than one vote. BOTH HOUSES OF THE PARLIAMENT. 125 Electors. — Sec. 30. Until the Parliament otherwise pro- vides, the qualification of electors of members of tlie House of Representatives shall be in each State that which is prescribed by the law of the State as the ([ualitication of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once. Sec. 8. The qualification of electors of Senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives ; but in the choosing of Senators each elector shall vote onl}- once. On these sections the following observations may be made. 1. In sec. 30, tlie words " until the Parliament otherwise provides" carry under sec. 51, art. xxxvi., the power to provide from time to time. 2. The reference to the more numerous House of Parlia- ment of the State is taken from the United States Constitu- tion, where the federal franchise is regulated by the provision that " the electors in each State shall have the qualification requisite for electors of the more numerous branch of tlie State Leofi-slature." In those States of the Connnonwealth in which both Houses are elective, the law of the State has fixed the number of representatives in each House, and has always provided that the lower House shall contain a number of members substantially larger than that in the Upper House. In New South Wales and Queensland, the Upper House is nominated, not elected, and the number of members is by law unlimited. The electoral qualification in tlie States at the time of the establishment of the Common- wealth varied considerably ; but practically this is not m.w important, as the Parliament, by the Cummomcealth Fran- 126 THE COMMONWEALTH OF AUSTRALIA. chise Act 1902, exercised the power of establishing an uniform franchise for the Commonwealth, This Act pro- vides as follows : — Sec. 3. Subject to the disqualifications hereafter set out all persons not under 21 years of age whether male or female, married or unmarried — (a) Who have lived in Australia for six months con- tinuously, and (b) Who are natural born or naturalized^ subjects of the King, and (c) Whose names are on the electoral roll for any Electoral Division shall be entitled to vote at the election of members of the Senate and the House of Representatives. Sec. 4. No person who is of unsound mind and no person attainted of treason, or who has been convicted and is under sentence or subject to be sentenced for any offence punishable under the law of any part of the King's dominions by imprisonment for one year or longer shall be entitled to vote at any election of members of the Senate or the House of Representatives. No aboriginal native of Australia, Asia, Africa or the Islands of the Pacific except New Zealand shall be entitled to have his name placed on an electoral roll unless so entitled under sec. 41 of the Constitution. Sec. 5. No person shall be entitled to vote more than once at the same election.^ ^Semhle, naturalized under a law of the United Kingdom, or of a Colony which has become a State, or of the Commonwealth, or of a State : Con- stitution, sec. 34 (2). -Sees. 30 and 41 of the Constitution present some difficulties of construc- tion which were important so long as^he electoral franchise was governed by State law, and might have been important if the Commonwealth had a'lopted a franchise narrower than the States. The wide franchise adopted, however, makes it unnecessary to recur to the matters discussed in the first edition of this book at pp. 107-109, and in Quick and Garran, 483-7. BOTH HOUSES OF THE PARLIAMENT. 127 Qnalijicatioii of Members. — By tlie Constitution, sec. 16, the (jualitications for a Senator are the same as those of a member of the House, and by sec. 34 it is enacted that the Parliament may deal with the (jualitications of a member of the House, but until the Parliament has pro- vided otherwise — I. He must be (a) of the full age of 21 years, and must be (b) an elector entitled to vote at the election of members of the House of Representatives, or a person (jualitied to become such elector, and (c) must have been for three years at tlie least a resident within the limits of the Commonwealth as existing at the time when he is chosen. II. He must be a subject of tlie Queen, either natural born or for at least five years naturalized under a law of the United Kingdom or of a Colony which has become or becomes a State, or of the Connnonwealth or a State. " Disqualitications for Membership " are imjDosed as follows : — Sec. 48. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. Sec. 44. Any person who — I. Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen, or is entitled to the rights or pri\ileges of a subject or a citizen of a foreign power ; or II. Is attainted of treason or has been convicted ami is under sentence or subject to be sentenced, for any oHence punishable un L.R. 23 Q.B.D. 79. See also the judgment of Cockburn C.J. in Queen v. Harrald, (1872) L.R. 7 Q.B. 361 ; Chorlton v. Lings, (1868) L.R. 4 C.P. 374 ; and Nairn v. University of St. Andrews, (1909) A.C. 147. I BOTH HOUSES OF THE I'AKLIAMEXT, 131 — ill a form ("the (jiialilications .... shall be as follows ") which sugoests not merely that no person may be elected unless so qualified, but that any person who has these qualifications may be elected. One of these qualifica- tions is that the persoA shall be an " elector." With this provision before it, the Parliament has declared^ that all persons "whether male or female married or unmarried" shall be entitled to vote ; and has provided nothiui; in ihe Electoral Adi^ 1902-1905 to take away the qualification for membership which appears to be conferred upon electors by the Constitution, sec. 34-. In Beresford Hope v. Sand- Jmrst,^ the majority of the Court (Lord Coleridge, L.C.J., Cotton, Lindley, Fry and Lopes, L.J J.) considered that theic was great force in the argument that by the operation of the Inte'rprefation Act a provision that a person should not be qualified to be elected as a councillor unless lie was enrolled and entitled to be enrolled as a burgess, conferred a qualification upon women-burgesses; but lield that special limitincr words in the Act under consideration ousted the general provision of the Interpretation Act and specifically restricted the statutory mcaninj; of the masculine Avords to the right to vote. In the present instance there is no sjDecial restriction upon the words of the English Intei'iyretatioii Act; the CommomcealtJt FrancJiitie and Electoral Acts are subject to the same general proN'ision by sec. 23 of the Commonwealth Interpretation Act 1901 ; and tlic " (|ua]iii- cation " is dealt with by sec. 34 in positive language as compared with the negative language of the Municipal Corporations Act 1882.^ ^CommomoeaJlh Fntnchi^ie Act 190'2, sec. 3. = 11889) L.R. 23 Q.B.D. 79. The case of De Souza v. Cobdai, (1S91) 1 Q.B. 637, may also be re- ferred to. 132 THE COMMONWEALTH OF AUSTRALIA. Conduct of Elections. The Commonwealth Electoral Acts 1902-5 contain elabor- ate machinery for the preparation and revision of electoral rolls ; the only section which need be noticed is the con- venient provision for the co-operation of States and Com- monwealth in the production of a roll which may be used by both (sec. 30). In the nomination of candidates it is to be noted that the consent of the person nominated is required (sec. 97), and that he must deposit a sum of £25 (sec. 97), which is to be returned after the election unless the candi- date fails to obtain " more than one-fifth of the number of votes polled by the successful candidate who obtained the smallest number of votes at the election" (sec. 103). Voting is to be by ballot, and the usual machinery for taking the poll and preserving secrecy is provided, but blind or illiterate voters may be assisted (sec. 148). Following a recent departure in several of the States, electors are in certain cases allowed to vote by post. Distance of not less than seven miles from the polling place on polling day ; in the case of a woman, ill-health ; or in tlie case of anyone, serious illness or infirmity ; all these causes of probable inabilit}^ to come to the polling place without serious incon- venience may be anticipated by those who will take the trouble to comply with the provisions relating to voting by post (sees. 109-121). The poll having been taken and the scrutiny held, the writs are returned, in the case of the Senate, to the Governor of the State (sec. 165) ; in the case of the House of Representatives, to the Commonwealtli Electoral OfBcer for the State (sec. 166). Following the model of the English Corrwpt Practices Act 1883, which has been adopted by several of the States,^ the >South Australia : Electoral Code, 1896 ; Victoria : Constitution Act 1903 ; Western Australia: Electoral Act 1904 ; Tasmania: Electoral Act 1901. BOTH HOUSES OF THE PARLIAMENT. 133 Electoral Act fixes a maximum expenditure to be incurred in an election — for the Senate £250, for the House £100 (sec. 169), and requires a return of expenditure to Ije made by every candidate, wliicli is to be made available for public inspection (sec. 172). The Act specifically enumerates the matters on which electoral expenses may be incurred, " electoral expenses " being defined as all expenses incurred by or on behalf or in the interests of any candidate at or in connection with any election, exceptincr only the personal and reasonable living and travelling expenses of the candi- date (sec. 171). Any contravention by the candidate of these provisions is an " illegal practice " (sec. 180); and any person incurring or authorizing any electoral expense with- out the written authorit}^ of the candidate or his agent is liable to a penalty not exceeding £50 (sees. 185, 182). Breaches of the law relatino- to elections are divided into three heads (sec. 173) — I. Breach or neglect of official dut}^ punishable by a penalty not exceeding £200 or a year's imprisonment (sec. 174). IT. Illegal practices, including bribery and undue influence, 111. Electoral offences. "Bribery" is minutely defined b}'' sec. 175, and "undue influence" by sec. 177; and without limiting the effect of the general words in tliese sections, l)ribery is declared to include " the supply of meat drink or entertainment after the nominations have been otlicially declared, or horse- and carriage hire for any voter whilst going to or returning from the poll, with a view to influence the vote of an elector" (sec. 176), and " undu(> influence" to include " every interference or attempted interference with the free exercise of the franchi.se of any citizen " (.sec. 178). But " no declaration of public policy or promise of public action shall be deemed bribery or midue influence " (.sec. 179). 134 THE COMMONWEALTH OF AUSTRALIA. Illegal practices also include (a) " any publication of any electoral advertisement, handbill or pamphlet, or any issue of any electoral notice (other than tlie announcement by advertisement in a newspaper of the holding of a meeting) without at the end thereof the name and address of the person authorizing the same ; (b) printing or j^ublishing any printed electoral advertisement, handbill or pamphlet (other than an advertisement in a newspaper) without the name and place of business of the printer being printed at the foot of it ; (c) any contravention by a candidate of the pro- visions of Part XIV. of this Act relating to the limitation of electoral expenses" (sec, 1(S0, amended by Electoral Act 1906, sec. 2), Bribery and undue influence are punishable by a penalty not exceedino- £200 or one year's imprisonment ; other illegal practices by a penalty not exceeding £100 or six months' imprisonment (sec. 181). In addition to these penalties there is the disqualification for two years, already noticed, imposed upon all persons convicted of bribery or undue influence, or attempts thereat, or found by the Court of Disputed Returns to have committed, or attempted to commit bribery or undue influence when a candidate (sec. 206a). Under the original Act of 1902, the Court of Disputed Returns held that the penalties imposed b}' the Act for statutory " illegal practices " were exhaustive, and that as the Act did not provide for the avoidence of the election, the Court could not declare the election void for anv act which would not avoid an election at common law.^ This is now provided for by sees. 197 and 198a of the Amended Act of 1905, whereby an election may be declared void on the crround that illeo;al nractices were com- mitted in connection witli the flection. If the Court finds ^Chanter v. Blackwood, (1904) 1 C.L.R. 39, See also Constitution, sec. 44 (ii.), whereby the seat of any member convicted of an offence punishable by a year's imprisonment is vacated. BOTH HOUSES OF THE TARLIAMENT. 135 tliat the successful candidate has committed or attempted to commit bribery or undue influence, his election must be declared void. But the Court shall not declare that any person was not duly elected, or declare any election void (a) on the ground of any illegal practice committed by any person other than the candidate, and without his knowledge or authority ; (h) on the ground of any illegal practice other than bribery or corruption, or attempted bribery or cor- ruption, unless the Court is satisfied (in either case) that the result of the election was likely to be affected and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void " (sec. 198a). "Electoral offences" is a miscellaneous head witli various penalties. Sec. 182d imposes a penalty of £o on employers who refuse leave of absence for such reasonable period not exceeding two hours as may be necessary to enable an employee to vote. The employee is under a like penalty not to obtain leave of absence under pretence of an intention to vote ; and " the section shall not apply " to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged. By sec. 206n gifts or promises of gifts by candidates within three months before the election to any club or other association are forbidden under a penalty of £5 "in addition to any other penalty provided by law." Sec. 20Gc is inserted for the protection of candidates against the circulation of defamatory statements. Such statements may be restrained by injunction; and their publication is made an offence punishable on convict inn witli a penalty of £100 or six months' impiisonment, but tiie defendant in such criminal proceedings is entitled to ac(|uittal if he shows that he had reasonable crround f(jr l)elieving, ami did in fact believe the statement to l)e true. 136 THE COMMONWEALTH OF AUSTRALIA. Disputed Elections. By sec. 47 of the Constitution, it was enacted that until Parliament otherwise provided, ajny question respecting the qualification of a Senator or member of the House of Repre- sentatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, should be determined by the House in which the question arose. By the Coniinonwealth Electoral Acts 1902-5 (supple- mented by Act No. 10 of 1907 applicable to casual vacancies in the Senate), tlie Parliament has followed the course now generally favoured for the determination of this kind of dispute, and has declared that the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise^ (sec. 192). The High Court is constituted the Court of Disputed Returns, with power either to try the petition itself or to refer the petition for trial to the Supreme Court of the State in which the matter arose (sec. 193). The Court is furnished with tlie ordinary powers of a Court and does not merely investigate and report, but determines the validity of the election in question (sec. 197), and the decision is self-executing, i.e., if the Court declares a person not elected, he ceases to be a Senator or member; if any person not returned is declared duly elected, he may take his seat accordingly ; and if an election is declared absolutely void a new election shall be held (sec. 205). The powers of the Court are to be exercised on sucli grounds as the Court in its discretion thinks just and sufficient (sec. 197 (2) ), and 'Similar provision has been made by the States of Tasmania {Electoral Act 1901) ; Western Australia (iJ^erforai? J c;; 1904). In Queensland (Elec- tions Trihxinal Act 1SS6) and South Australia [Electoral Code 1896) a Supreme Court Judge sits with members of the House concerned as a jury or assessors. BOTH HOUSES OF THE PARLIAMENT. 137 tlie Court shall be truidcd by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not (sec. 199). No election is to be avoided on account of errors, delays or neglects not proved to have affected the result of the elec- tion (sec. 201). The decisions of the Court are final and conclusive and without appeal ; and in accordance with the decision of the Privy Council, the prerogative of the Crown to grant special leave to appeal does not apply to judgments given in a jurisdiction of this nature.^ If the Court finds that any person has connnitted an illegal practice at an election, that must be forthwith reported to the Minister (for Home Affairs) (sec. 198b), and no finding by the Court shall bar or prejudice any prosecution for any illegal prac- tice (sec. 198a). The Court may award costs (sec. 202b) and provisions designed to limit expenditure on petitions are, first, that no more than £100 may be so awarded, and next, that no party to a petition shall, except by consent of all parties or leave of the Court, be represented by counsel or solicitor, and in no case shall more than one coun.sel or solicitor appear (sec. 202a). By sec. 42 of the Constitution every Senator ;ind member of the House must, before taking his seat, make and sub- scribe an oath of allegiance or affirmation in the form set out in the Schedule to the Constitution. Remuneration of Members. In all the States, members of the Lower House are paid a salary, "allowances" or "re-imbursement of expenses" vary- ing from £100 to £300 per annum witli railway pa.sses and other privileges. In South Australia and Tasmania the members of the Legislative Council arc also paid, an ; Soutli Aiistniliii, Constitution Act 1855-6, No. 2, sec. 35 ; British North America Act 1867, sec. IS, luul the Parliament of Canada Act 1875. ^Dill V. Murphy, 1 Moo. P.C. N.S 487 ; Speaker of Legislative Assemhly ot Victoria v. Glass L.R. 3 P.C. 560. 138b the commonwealth of Australia. inittees of each House shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees, at the establishment of the Com- monwealth " (sec. 49). The Parliament has thus plenary power over the subject, untrammelled by the condition that privileges shall not exceed those of the House of Commons at the date of the Constitution Acts, respectively, as in the case of the other Australian Acts, or at the date of the Act conferring the privileges, as in Canada. By the Jury Exemption Act 1905, Senators and members of the House of Representatives are in common with a number of other persons made exempt from jury service either in the Com- monwealth or State Courts ; and by the Parliamentary Papers Act 1908, documents published under the authority of either House are not to be the subject of civil or criminal proceedings. Procedure. Under sec. 50, each House separately, or the two Houses in conjunction may make rules and orders for the conduct of its or their business and proceedings. The same section contains a provision that each House may make rules and orders with respect to '' the mode in which its powers privileges and immunities may be exercised and upheld." Both Houses sat in the first instance under the Standing Orders used in the Legislature of South Australia, of which State the President of the Senate and the Speaker of the House of Representatives were representatives. Eventu- ally, permanent Standing Orders were adopted by the Senate for the regulation of its procedure, and came into operation on September 1st 1903.^ The House continued to work under the original Standing Orders as amended from time to time. M1903) P.D. 3847. PRIVILEGES OF THE PARLIAMENT. 138c Two very important changes were introduced in 1905 with a view to the economy of Parliamentary time. Under the first of these, lapsed bills may be proceeded with in the next session of Parliament provided that neither a general election, nor a periodical election of the Senate, has inter- vened.^ The other amendment provides for the regulation of debates in the House of Representatives. It declares (a) that any member may move the closure of a debate, and if a majority of the House (consisting of not less than 24 members) is in favour of the motion, the question under . 5,792. *lh. 5,79'2. 138d the commonwealth of Australia. dealincr witli the relations of the Senate and the House. But the provision requiring tlie recommendation of money votes by the Governor-General may be here noticed. It is an essential part of our Parliamentary system that every orant of money for the public service shall be based upon the request or recommendation of the Crown, " The foundation for all Parliamentary taxation is its necessity for the public service as declared by the Crown through its Constitutional advisers."^ This principle fixes upon the Ministry a definite responsibility for the national finance, which acts as a safeguard against Parliamentary reckless- ness. The absence of such a rule in the Colonies was regarded by Lord Durham as one of the principal factors in the ill government of Canada; competent observers of a later date notice financial disorders in France and Italy as a consequence of the neglect of this rule. Ever since the introduction of responsible government into the Colonies, the rule has in one form or other found a place in colonial constitutions. Consistently therefore, it is provided in the Constitution that " a vote, resolution, or proposed law for the appropriation of revenues or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor- General to the House in which the proposal originated " (sec, 56). This provision must, like so much else that belongs to our system of Parliamentary government, be supplemented by conventional rules such as exist in the House of Commons as to the origination of laws imposing taxation, and the prohibition of the increase of the amount asked for by the Crown,^. ^May, Parliamentary Practice, cap. xxii. *It will be noticed that the prohibition does not extend to taxation, and it was resolved during the first session of Parliament that it was competent to a private member to move an increase in the amount of a proposed customs duty ( (1901) P.D, 7,135, 7,139), [139] CHAPTER III. THE RELATIONS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES. Ix the working of responsible government in the Colonies we are accustomed to sucli a constitution of the two Houses of the Legislature as ensures the sui)remacy of the Lower House. The Colonies arc democratic communities, and the Legislative Councils sin against tlie current doctrines of democracy in that they are constituted by nomination and not election, or, if tliey are elective bodies, tlieir members generally require some qualification of property and are always elected bj- a " select " constituency ; while they are not b}^ dissolution made readily responsive to public opinion. The Assembl}-, alwa^'s elected on the brt)adest basis of (lualification, both for the members and electors, and freciuentlv reconstituted b\' a general election, is the predominant power because it liaiinonizes, and the Legis- lative Council does not, with the national life and spirit. The.se conditions are not fully reproduced in the Com- monwealth Government. The constitution described in the last cliapter, shows us two Cliambers, each elected upon a popular basis, uniform alike in tlie ([ualiticatioii for members and for electors ; and the provisions for jxayment of salaries equal in amount to Senators and members of the 140 THE COMMONWEALTH OF AUSTRALIA. House leave no room for the suggestion of social exclusive- ness as a mark of distinction between them. Thus popularly constituted as the House itself, the Senate represents an essential principle of union — it is the House of States in a Federal Commonwealth. It is true that neither in Canada nor in Switzerland does the House of the States exercise an equal power with the other House, but in both cases there are circumstances of constitution — in Canada the nomination of members and the imperfection of the State principle, in Switzerland the small number of members and the want of an}^ single principle of constitu- tion — which have determined for it an inferior position.^ The other circumstances of constitution which may affect the position of the Senate in the Government are its permanent existence as a body and the longer tenure of its members. These are conditions which are commonly believed to be a check upon "democratic recklessness"; they are the especial marks of the " revising " and " retard- ing" Chamber — the "Second Chamber," or " Upper House." The circumstance which most closely touches the relation of the two Houses of the Parliament is the introduction of Cabinet Government, with its tradition of the supremacy of one House throuo-h the control of finance. The Constitution seeks to establish the main features of this familiar relation consistently with recognizing the distinctive position of the Senate. This accounts for— (1) the provisions as to ]\Ioney Bills ; (2) a novel provision for deadlocks. Revenue and Appropriation Laws. — This matter is dealt with by sees. 53 to 56. Sees. 53 to 55 seek to define wdth more detail and precision than is customary in Constitutions the powers of the two Chambers of the ^ Pvven in Switzerland the (.Jouncil of States exercises considerable power, and has not been relegated to that condition of subordination found in the Upper House of countries where the Cabinet System exists. RELATIONS OF TWO HOUSES. 141 Legislature respectively, a matter wliicli has in all the Colonies been one of controversy, and in some has pro- duced conflicts of so much heat as to involve Governor, Ministry, and both Hoilses of the Legislature in discredit. The attempt to translate to the Colonies the traditions of the Lords and Commons has hardly succeeded, even where the Legislative Council has been a nominee body ; where the Legislative Council has been elective, there has been more than a plausible gi-ound for standing purely upon the law of the Constitution, a law which, reproducing, often clumsily and in ill-chosen words, some of the conventional rules which are observed by the Lords and Commons, has been silent as to otiiers. Li the Commonwealth, the Senate is more than the Legislative Council of a Colon}- ; not merely elected, it rests upon the same popular basis as the House of Representatives, and its constitution charges it with the protection of interests which might not be those represented by the majority of the House. On the other hand, the States contribute to the Commonwealth upon a population basis, and the House of Representatives is, broadly speaking, the representative of population. While the House of Representatives cannot claim that Parliamentary supplies are made good by their sole constituents, they can evidently claim a larger power than can the Senate. These are the conditions which underlie sees. 53 to 55. Powers of the 5;^. Proposed laws appropriating revenue or moneys or im- respect of legis- posing taxation, shall not originate in tlie Senate. But a laiion. proposed law .shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its contain- ing provi.sions for tiie imposition or appropriation of fines or other pecuniary penalties, or for tlie demand or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not ameiul jiroposed laws imposing taxa- tion, or proposed laws appropriating revenue or moneys for the ordinary annual services of the (Government. The Senate ma}' not amend any proposed law so as to in- crease any proposed charge or burden on the people. The Senate may at any stage return to the House of Repre- 142 THE COMMONWEALTH OF AUSTRALIA. seiitatives any proposed law Avhich the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representa- tives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as ])rovided in this section, tlie Senate shall have equal power with the House of Representatives in respect of all proposed laws. Appropriation 54. Tlie proposed law whicii appropriates revenue or moneys for the ordinary annual services of tiie Government shall deal only with sucli appropriation. Tax Bills. 55_ Laws imposing taxation shall deal only with the im- position of taxation, and any provision therein dealing with • any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only ; but laws imposing duties of customs shall deal witli duties of customs only, and laws imposing duties of excise shall deal with duties of excise only. In sec. 53 the Constitution avoids the ambio:uous words " for appropriating " of the Constitution Acts of tlie Colonies, and adopts a word expressive of the most exten- sive power claimed by the Lower House. The words following, however, while preserving the initiation of measures of finance to the House, make provision against certain inconveniences which would attend the strict appli- cation of the rule. The exclusion of fees and penalties from the rule is suggested by the Standing Order of the House of Commons of 24th July, 1849. The succeeding paragraphs of the section are suggested by certain resolutions adopted by the Council and Assembly in South Australia, and known as " The Compact of 1857." Unlike the Constitution Acts of some of the Colonies, the Constitution Act of South Australia (No. 2 of 1855-6) made no special provision as to money bills save as to their recommendation to the Assembly by the Governor. Conflicts between the Council and Assembly as to their respective powers, in other colonies postponed for a time, began in South Australia at once. In the result, the Council RELATIONS OF TWO HOUSES. 143 waived its claim to deal Avitli the details of the ordiiiarv annual expenses of the Government submitted in an Appropriation Bill in the usual form, but reserved the right to demand a conference 'thereon, to state objections and to hear explanations. As to other Bills, the object of which was to raise money, or to authorize the expenditure of money, the Council asserted its competence to suggest alterations to the Assembly, and to assent to or reject such measures. These resolutions were agreed to by the Assembly. It will be observed that in sec. 53 the prohibition of amendment by the Senate is not co-extensive with the provision as to origination, so far as concerns proposed laws appropriating revenue or moneys. While all proposed laws appropriating revenue or moneys, save those specially excepted in the first clause, must originate in the House, the Senate is restrained from amending none but the pro- posed law for appropriating revenue or moneys for the ordinary annual services of the Government. ]]m in no case must the power of amendment be exercised by the Senate so as to increase a proposed charge or burden on the people. When the power of amendment is denied, the power of requesting an amendment is given to the Senate, and as such request may be made " at any stage " in the progress of the bill through the Senate, it is clear that the Senate may exercise the extreme power of rejection if its requests are not adopted. The last clau.se in sec. 53 has a political rather than a legal importance. Australian experience has abundantly shown that no opinion upon financial powers is too wild to obtain some currencv ; and therefore it mav not have been superfluous to in.sert words showing that the powers con- ferred by sec. 53 upon the Senate do not exhaust the powers of that body over Money Bills — that the section in general is not one granting new power, but limiting and directing the exercise of power already enjoyed. 144 THE COMMONWEALTH OF AUSTRALIA. Sees. 54 and 55 are auxiliary sections designed to secure the arrangements of sec. 53. They prevent " tacking " in its most objectionable forms ; they also deprive the House of the power of efiectuating its control over hnance by includino; the whole of the financial measures for the year in one bill — the course hinted at by the Commons Resolutions of 1860, and adoj)ted in the Colonies for the purpose of compelling the Upper House to accept an unwelcome measure. The great resource of the Commons, however, depends for its efficacy upon a tradition which has not equal force in the Colonies — that the Upper House will not embarrass the Crown by refusing to pass an Appropria- tion Act. In Australia, a Legislative Council, by rejecting an Appropriation Bill, merely embarrasses its political oppon- ents, and has not hesitated thus to deal with attempts to deprive it of power over such matters as the tariff or payment of members. In fact, the old constitutional weapon — the refusal of supplies — is in new hands, and may be made to serve a new purpose. The control of the Lower House over the jDolicy of the Crown and its Ministers is now so complete that the problem of modern governments is rather how to protect the Government from the caprice of the House than to secure further control ; it is never necessary for the House to fall back upon the source of its power. The responsibility of the Ministry to the Upper House, if it exists, is of a very indirect kind ; but a check upon the Ministry and the Lower House lies in the fact that the Upper House might in an extreme case refuse to pass the Appropriation Bill, and thereby force a dissolution or a change of Ministry. These are the conditions recognised by the Constitution. It marks the province of the Senate in financial matters, and prevents the House of Representatives from taking a course which might justify or excuse the Senate in rejecting an Approj)riation Bill. In the balance RELATIONS OF TWO HOUSES. 145 of power in tlie Commonwealth, it is a factor not to be neglected that, while the Senate has a recognized power over mone}^ bills beyond that of any other second chamber in the British Dominions, it can hardly exercise the extreme power of rejecting tlie Bill for tlie " ordinary annuaLs^ryices of the Government " upon any other ground than that ^ie Ministry owes responsibilit}^ to the Upper not less than to the Lower House. That is a position which in the future, the Senate, as the House of the States as well as the Second Chamber, may take up ; but it is a position from which even in tlie history of Parliamentary Government in the Colonies, the strongest supporters of the Upper House have generally shrunk. It took some time for the Parliament to adjust the forms to which its members had been accustomed in the Colonial Parliaments to those relations which the Constitution had established between the Senate and the House of Repre- sentatives. The first Supply Bill introduced into the House in 1901 contained the usual address to the Sovereign and a recital of the resolution of the House of Representatives to grant the sums therein mentioned towards making good the supply cheerfully granted by them to His INIajesty.^ The only departure from familiar forms consisted in the omission of the words praying the Crown to enact, the prayer being regarded as inappropriate where not tlie Crown alone, but tlie whole Parliament, was the enacting authority. As soon as the Bill reached the Senate, objection was taken that no estimates formed part of the Bill, and that it contained nothing upon which the Senate could exercise its judgment in the exercise of its constitutional powers. In this view the Government acquiesced, and on their suggestion the Senate made the first exercise of its power under sec. 53 by returning the Bill to the House with a request that the '(1901) P.D. 1021. 146 THE COMMONWEALTH OF AUSTRALIA. House would so amend the Bill that it might show the items of expenditure comprised in the sums which the Bill purported to grant.^ The House accepted the position, the Bill was laid aside, and a new Bill introduced.^ In the new Bill, the preamble already referred to was omitted and a schedule of items of expenditure added, tlius assimilating the Supply Bill to an Appropriation Bill'; and after some experiments in form, the Bill went to the Senate with the recital preceding the words of enactment : " For the purpose of appropriating the grant made by the House of Repre- sentatives."^ But even this failed to carry out the scheme of the Constitution, and the Senate resolved to request the omission of words relating to the grant of the House, and the insertion in the title and in the Bill itself of words showing that the grant was made by the w^liole Parlia- ment.'' These requests were acceded to by the House making the amendments sought, with the exception that the recital was retained, the words " originated in " being substituted for " made by."^ Old forms still lingered in the terms of the Governor- General's speech at the opening of Parliament informing the " gentlemen of the House of Representatives " that estimates would be laid before them, and in the prorogation speech thanking them for the liberal provision made for the service of the Crown. Attention was called to the matter in 1904, and a resolution was carried for an address to the Governor- General praying that he would recognize in his addresses to Parliament that supply was the grant of both Houses.'^ This M1901) P.D. 1153. "-lb. 1174. »/6. 1190. ^ *Ib. 1352. "76. 1471. •"•See Act No. 1 of 1901 (Consolidated Revenue). '(1904) P.D. 942-947. RELATIONS OF TWO HOUSES. 147 course is now followed, and no distinction is made between the Houses in the Governor-General's prorogation speech, thougli the opening speech somewhat clumsily informs the gentlemen of the House of Representatives that the estimates of expen- diture originating from them will be framed with economj*. As early as June, 1901, the President of the Senate took objection to the practice of printing in italics all words in Senate Bills relating to the imposition of penalties or the appropriation of lines, by analogy to the practice of the House of Lords, and directed that it should be discontinued.^ Such bills are expressly put outside the restraints on the powers of the Senate by sec. 53 of the Constitution, and there are therefore no peculiar privileges of the other House to be considered in respect to them. The questions that have arisen as to the construction of sec. 53 must be briefly noticed. Early in the first session of Parliament, in 1901, objection w^as taken in the Senate to the inclusion of non-recurrent items in a Supply Bill which, as has been seen, is a sessional Appropriation Bill, and it w^as argued that expenditure on the military demonstrations connected with the Roj^al visit, or on the construction of new public buildings, could not be regarded as "ordinary annual services of the Government," that it should therefore be separately presented in order that the Senate might if it desired exercise its powers of amendment thereon. To this the answer was made that the expression must be inter- preted by reference to the Parliamentary practice from wdiich it was adopted, and that therefore all matters mIhcIi would according to that practice be presented in the usual departmental estimates for the cuncnt Vf.ir mimc properly included, whether the expenditure was of a recurrent kind M1901) P.D. 7G;5. See May's ParliameiUary Practice, 10th e.l., pp. 460, 5-29, 548, 705. 148 THE COMMONWEALTH OF AUSTRALIA. or not.^ This view was approved by the general sense of the Senate and ad opted. "-^ There has been more difference of opinion as to the nature of the power to request amendments. On the Customs Tariff Bill 1902, the Senate made a large number of requests for amendment ; some of these amendments were made by the House, and in other cases the requests were refused. The refusals were taken into consideration by the Senate, which resolved to repeat its requests. This at once raised questions of serious imj)ortance, for if the Senate was at liberty before l^arting with the Bill to repeat its requests, it was obvious that the distinction between this practice and a power to make and insist on amendments was merely formal. A sharp constitutional struggle might have ensued but for the fact that the settlement of the tariff was deemed urgent, and that the constitutional issue would certainly be obscured by the fiscal views of members. The Government accordingly invited the House to accept a resolution refraining from the determination of its constitutional rights or obligations, and to take the Senate's message into consideration. Notwith- standing protests that this was " an ignobly easy way of responding to a direct cnallenge," the motion was adopted.^ The leader of the Government in the Senate proj)osed a similar " without prejudice " motion ; but the Senate took tlie stronger step of affirming that " the action of the House of Representatives in receiving and dealing with the reiter- ated requests of the Senate is in compliance with the un- doubted constitutional position and rights of tlie Senate."'^ ^See May, Parliamentary Practice, pp. 517 et seq. 2(1901) P.D., pp. 1.310 e? seq. "(1902) P.D., pp. 15,676-15,728. *(1902) P.D., pp. 15,SIS et seq. The same course was followed on the Customs Tariff Bill 1908, P.D. 11,437 (House), 11,581-8 (Senate). The reso- lutions were moved in this instance by the Prime Minister in the House, and the V^ice-President of the Council, as " leading the Senate," in the Senate, and were treated as non-jmrty questions. RELATIONS OF TWO HOUSES. 149 In 1903, a series of interesting debates took place on the financial powers of the two Houses. The occasion was the Sugar Bounty Bill/ which provided for the payment of a bounty to all growers of sugar in the production of which white labour only was employed, and appropriated and made payable out of the Consolidated Fund whatever sum was required for this purpose. The Senate made an amendment extending retrospectively the time over which the bounty was payable, and thereby increasing the number of persons entitled to the bounty.- In the House, the Prime Minister moved to disao-ree wath the amendment as inconsistent with sec. 53 of the Constitution, in that it increased a charge or burden on the people ; and the House accepted the motion.^ In the Senate, it was finally resolved not to insist on the amendment, and the proposal was re-submitted to the House in the form of a request, which was conceded.* Those who supported the claim of the Senate urged that in determining the character of a proposed law under sec. 53 and the accompanying section, regard must be had exclusively to its innnediate purpose, and not to its ultimate consequences. Any proposal which imposed taxation or dclincd the machinery by which the amount of a tax Avas computed, imposed a charge or burden on the people, and to these the restriction applied. But appropriations of public money took nothing out of the pockets of the people ; they were burdens on the CroM'n or the revenue. If as a consequence it was necessary to raise additional revenue, that must be done separately, and to the moasurrs introduced for that purpose the restriction wouM appl}-. Jf the restriction were applicable to appropriations, it would be eipially applicable 'See Svgn7- Bounty Act \W.\. -■(1903) P.D. 1691-170.3, 1821-1S60. •'(190.3) P.D. 2013--2034. <(UI03) r.D. 2076-207S, 2364-241'., 24G9-24S9. 150 THE COMMONWEALTH OF AUSTRALIA. to proposals involving the expenditure of public money, a class of measure which the Senate had repeatedly originated and amended.^ Finally, it was contended that if you were to look beyond the immediate character of the measure to its consequences, you must regard the whole scheme of which it formed part. In this case, the bounty was merely the substitute for the rebate of excise duty by which hitherto white labour had been encouraged. The rebate of course diminished revenue, and in that sense lessened the burden on the people ; and the same quality might fairly be attributed to the bounty which took its place. Incidentally, the speakers considered whether the " burden on the people " applied only to the people collectively, or to the incidence on the individual taxpayer. The whole discussion reveals the too familiar difficulties which arise from the insertion in Acts of Parliament of terms which serve well enough to express the flexible ideas of political and popular thought, but are without legal precision. What is a "law imposing taxation" was considered by the Supreme Court of Victoria in Stephens v. AbraJiams,^ where it was held that the provisions in the Customs Act 1901 — the " Machinery " Act for the organization of Customs administration — whereby goods falling under two heads of dutiable goads should pay the higher duty (sec. 138), that substitutes for dutiable goods should pay the duty charge- able upon those goods (sec. 139), and some others of a similar nature (e.g., sees. 140, 148), did not impose any tax, since their entire operation was dependent upon rates of duty to be imposed by a later Act, and in fact imposed by the Customs Tariff Act of 1902. It was the latter Act alone which imposed the duty, and therefore the penal pro- '^E.cj. Property for Public Purposes Acquisition Bill 1901, where the rate of interest payable by tlie Commonwealtli was raised from .S to .'{5 per cent. -(1903)29A^L.R. 201, 229. RELATIONS OF TWO HOUSES. 151 visions of the Act of 1901 were not void as foreign matter introduced into a Taxing Act. Williams J. was also of opinion that if the Act of 1901 was a " law imposing taxation," penal provisions in x-espect to evasion did in fact " deal only with the imposition of taxation," and were not other matters within the prohibition of sec. 55. There is one matter which, from the vcr}' nature of the Senate, is its special concern. As the Courts are the guar- dians of the rights of the States in matters that lie outside the federal power, so the Senate is the guardian of the interests of the States in matters which are within the federal power. For the rest, it has been contended that the system of Cabinet Government which was introduced from England to the Colonies, and which the Colonies imposed upon the Commonwealth, is essentially a feature of unitarj' government and is inapplicable in a federal government ; that a Ministry cannot serve two masters — the Senate and the House ; that if the weakness of the Executive is one of the greatest dangers of party government with responsi- bility to one House, responsibility to two Houses would break down the Executive machinery altogether; and that responsibility to one House alone means unitary not federal government. The answer to this seems to be that neither the Cabinet System nor Federal Government is a rigid institution. The liability of the first to change and to mould itself to conditions is its one permanent feature and perhaps its principal advantage. Both "federal " and " uni- tary" governments are cominMiily mere approximations to a type, and neither necessarily excludes all the features of the other. The experience of the first eight years of the Common- wealth shows that the character of the Senate in the work- ing Constitution is determined more by its popular basis than by its position as a House of States or, in spite of its 152 THE COMMONWEALTH OF AUSTRALIA. permanence as a body and the longer term of its members, as a Second Chamber. Very far from being a " drag on the wlieel " — the conventional rule of an Upper House — the Senate has been more " radical," " progressive," or " social- istic " — readers will choose their own epithet according to their political sympathies — than the House of Represen- tatives. As yet this has not been attended by any real attack upon the doctrine of responsibility of Ministers to the House, though on more than one occasion the Ministry has been compelled to accept important amendments in their legislation at tlie instance of the Labour Tsivty, which has been stronger in the Senate than in the House. All but two, or at most three, members of the Ministry are members of the House, and in spite of resolutions that the Govern- ment should be more adequately represented in the Senate and should initiate more business there,^ and j)roposals that Ministers should be able to speak in both Houses, the Government representation in the Senate in the last three Ministries has consisted of one Minister with and another w^ithout office. The organization of parties in the Senate is certainly more marked than in the Legislative Councils, but it is less complete than in the House of Representatives or in the Legislative Assemblies of the States. If the Senate is less easily " led " by the Government, the " Opposition " is not so clearly defined. Motions have been carried in the Senate in spite of Government disapproval which, had they been passed in the House in similar circumstances, must have been treated as a withdrawal of confidence from the Govern- ment. At present, the Senate makes no claim that its con- fidence is essential to the continuance of a Ministry in office, and probably would not entertain a direct vote of censure. On the other hand, there is no reason to suppose that any Ml 903) P.I). 1473. RELATIONS OF TWO HOUSES. 153 "constitutional," as distinguished from "political," considera- tions would deter it from amending or rejecting as it pleased any Government measures sent to it from the House of Representatives. The actual part of the Senate in Aus- tralian politics appears to reveal a new role for a Second Chamber. Bagehot has emphasized the " informing " and " educational " functions of the House of Commons, func- tions which are being seriously obscured in an era of closure. They are functions which re{[uire some leisure, which is exactly what is most lacking in a typical modern Legislature spurred by Party Government. The Senate, finding itself unprovided with legislative work by the Government, occupies a good deal of time in the con- sideration of private members' motions, advocating the extension of the functions of Government by the nationali- zation of some industry, or the assumption by the Common- wealth of some power now belonging to the State, or some other matter forming a part of the "advanced" political pro- gramme. Thnmgh its Connnittees it undertakes inquiries and collects information. Its educational and informing ctForts are somewhat frustrated by the meagreness of news- paper reports, of which, however, the House has almost as much reason as the Senate to complain. Thr rimnr of the Senate holds too many possibilities to invite prophecy. But the power of compelling the acceptance of amendments to legislation is a very real one, and will probably prevent tliat decline in prestige an Senate chooses to assert itself as a factor in Part}^ Government there is nothing in the law of the Constitution to prevent it. The ultimate political effect of the clauses of the Consti- tution on the financial powers is to strengthen tlu> Senate, 154 THE COMMONWEALTH OF AUSTRALIA. for it is entitled to exercise an effective control by means less heroic than the rejection of an Appropriation Bill. " Deadlock," then, in the strict sense — the brinofing: the machinery of government to a standstill — ivS a contingency so remote as hardly to be within the range of practical politics. But, moved by the experience of more than one of the Colonies, and especially of the Colony of Victoria, the Convention set itself to discover some constitutional means of reconcilinof differences between the Houses. All sorts of schemes were considered in the Convention, in the Parlia- ments, and in the press. Those who may be called the National Democrats desired that questions of difference should be settled by the referendum pure and simple — by a simple majority of the electors in the Commonwealth. But this was a reference to the constituents of one Chamber only, and was naturally objected to by the smaller States. Accordingly, there was a party whom we may call Federal Democrats, who urged that there should be a referendum to the constituents of the respective Houses. Then there were those who were totally opposed to the referendum and favoured a resort to the ancient constitutional remedy of dissolution, to be applied alternatively, simultaneously, or successively to the Senate and the House. Others, again, thought that to make any provision at all was the surest means of precij)itating conflicts which might be avoided in the ordinary course of things b}^ a little forbearance and good sense. In the end, the Convention adopted a system which, with a trifling alteration by the Premiers, is now contained in sec. 57 of the Constitution. Disagreement 57. If the House of Representatives passes any proposed between the , -i . i r. • ? -i . •. -, Houses. \&\\, and tlie senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, RELATIONS OF TWO HOUSES. 155 and the Senate rejects or fails to pas3 it, or passes it with amendments to wliich tiie House of Representatives will not agree, the Ciovernor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolu- tion shall not take place within six months before the date of the expiry of the House of Representatives by ctUuxion of time. If after such dissolution the House of Representatives again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-Cieneral may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting maj- deliberate and shall vote together upon the proposed law as last pro- posed by the House of Representatives, and upon amend- ments, if any, which have been made therein l)y one House and not agreed to by the other, and any such amendments which are affirmed by an al)solute majority of the total number of the members of the Senate and House of Repre- sentatives shall be taken to have been carried, and if the pro[)ose(l law, with the amendments, if any, so carried is affirmed by an absolute nuijority of the total number of the members of the Senate and House of Representatives it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent. The solution is curious and unii|uo. In tlic Hrst place it will be noticed that the scheme applies only to measures initiated in the House of Representatives, a fact significant of the parts which the two Houses were expected to play in government. Secondly, there is ample provision made for delay and for reconsideration by the House,^ and there is no obstacle to a resort to the familiar means of conference. The application of the principle of dissolution to the Second Chamber is not wholly a novelty, and was inspired in a measure by the Constitution of South Australia.'- But in ^Professor Burgess attaches great importance to rei)etition of the vote a3 a natural way of securing delilieration. maturity, and clear consciousness of purpose. He suggests a mode of facilitating constitutional amendments in the United States which probably was not without influence in the Conven- tion (Political Science and Con^tilutiouaf Law, vol. i., p. l.")"J). - Constitritioii Act Furthfr Amendment Act 1S8I, sec. It!. It has been copied by Victoria [Constitution Act 1903). 156 THE COMMONWEALTH OF AUSTRALIA. South Australia a dissolution of the Legislative Assembly- must precede the dissolution of both Houses, and the Con- stitution of the Commonwealth avoids the appearance of punishing or putting pressure upon one House rather than the other. The mere double dissolution of the South Aus- tralian system may of course result in each House receiving a mandate from its constituents to " stick to its guns." For such a contingency the Commonwealth Constitution pro- vides by establishing a joint sitting of the Senate and House, in which the Bill is disposed of by the vote of an absolute majority of the total number of members of both Houses. The requirement of an absolute majority of each House, in its separate sitting, is to be found in most of the Constitutions of the Colonies as the condition of various amendments ; but the joint sitting is a novel feature in Australian politics. In tlie United States it is resorted to by the States Legislatures in case the Chambers have in separate sittings chosen different persons as Senators. And in the Constitution of the Commonwealth a joint sitting of the Houses of the State Parliament fills casual vacancies in the Senate (sec. 15). The French Constitution can be amended by a National Assembly consisting of the two Chambers in joint session, and the same body elects the President. In Switzerland the two Chambers of the Federal Assembly meet in joint session for three purposes — the decision of conflicts of jurisdiction between the federal authorities ; the granting of pardons ; and the election of the Federal Council, the Federal Tribunal, tlie Chancellor of the Confederation, and the Commander-in-Chief of the Federal Army.^ The real origin of the joint sitting provided for in sec. 57, however, is none of these; but rather the Norwegian system, 1 Lowell, Govtrnmentu and Parlies in Contintntal Europe., vol. ii., p. 214. RELATIONS OF TWO HOUSES. 157 according to which the two Chambers (or rather the two parts into which the House is divided) meet as one for the purpose of composing their differences. The system of sec. 57 is applicable to proposed laws of every kind but one — the amendment of the Constitution. That matter will be referred to in its proper place ; but it may be noted here as a curious fact that the provisions of sec. 128 for avoiding; the obstacle of disag-reement between the Houses are less cumbrous than those applicable to ordinary legislation. The reason is that the alteration of the Constitution is treated as pre-eminently a matter to be determined by direct vote of the electors. [158] • CHAPTER IV. THE ORGANIZATION OF THE EXECUTIVE: THE GOVERNOR-GENERAL— THE FEDERAL EXECU- TIVE COUNCIL AND THE KING'S MINISTERS OF STATE— THE CABINET SYSTEM. THE ORGANIZATION OF THE EXECUTIVE. By sec. 61 of the Constitution it is declared that the executive power of the Commonwealth is vested in the King and is exerciseable by the Governor-General as the King's representative. The Governor-General is thus the principal executive organ of the Commonwealth. Notwithstanding the general vesting of executive power by sec. 61, it is within the discretion of the Parliament to provide the machinery for carrying out its own laws, to establish bodies or offices to which their execution is en- trusted, and, it would appear, even to designate the persons who shall constitute such bodies or till such offices. It is long since our Legislatures departed from the practice of merely la3ang down the broad outlines of law ; the charac- teristic of British leijislation has been extreme minuteness of enactment, the extent to which it has plunged into the details of administration. Even in the United States, it is admitted, in sj)ite of the separation of powers, that the THE GOVERNOR-GENERAL. 159 authorities which are to execute an Act of the Letfislature, as distinguished from a power created by the Constitution, are within the discretion of the Legislature — "the authority which makes the laws has large discretion in determininor the means through which they shall be executed ; and the performance of many duties which they may provide for by law, they may refer either to the chief Executive of the State, or at their option to any other executive or minis- terial officer, or even to a person specially named for the duty."i Where particular powers are granted by the Constitution to a particular authority it is, of course, not in the power of the Legislature to commit them elsewhere, unless, as in the case of the appointment of civil servants (sec. 67), it is expressly provided that the Legislature may confer the power on some other authority. THE GOVERNOR-GENERAL. The princijjal provisions relating to the office of Governor- General are to be found in the Constitution under the head of " The Parliament." Sec. 2 of the Constitution havinor provided for the office, it was constituted by Letters Patent of 29th October, 1900, and a Commission was pas.sed under the Royal Sign Manual and Signet on the same day ap- pointing the Earl of Hopetoun Governor-General.- Subse- quently a " dormant commission " was issued appointing Lord Tennj'son (Governor of South Australia), or, in his default. Sir Arthur Lawley (Governor of Western Australia), to administer the gfovernment of the Conunon wealth in case of the death, incapacity, removal or absence of the 'Cooley, Conf^titulional Limilnfiniis, pp. IS.T-O. And see Ketnlall v. U.S., 12 Peters 524. Cf. also tlie observations in Moorhtad v. Huddart Parker, (1909) C.L.R. , as to the luter-State Commission. "See Appendix. 160 THE COMMONWEALTH OF AUSTRALIA, Governor-General and of the Lieutenant Governor-General should any be appointed.'^ Sec. 3 assigns a salary of £10,000 and makes a permanent appropriation to meet it. The amount may be altered by the Parliament ; but so that tlie salary of the Governor- General then in office is not affected.- Sec. 4 provides that powers conferred by the Constitution upon the Governor- General may be exercised by the person for the time being administering the Government ; sec. viL of the Letters Patent^ contains a like provision in regard to any powers and authorities conferred by that instrument. By sec. 126 of the Constitution, the Crown may authorize the Governor- General to appoint a deputy or deputies to act in any part of the Commonwealth ; and the Crown has exercised this power in sec. vi. of tiie Letters Patent, repeating the pro- viso that such an appointment shall not affect the exercise by the Governor-General himself of any power or function. The power is a very useful, almost a necessary one, in view of the large number of formal acts done in all parts of the Commonwealth which may require the concurrence of the Governor-General.^ Sec. 2 of the Constitution contains a description of the office and powers of the Governor-General. It declares that he " shall be His Majesty's representative in the Common- ^ Commonwealth Government Gazette, 23rd May, 1902. On Lord Hope- toun's recall, Lord Tennyson took up the government under this com- mission until he was formally appointed Governor-rJeneral. Presumably similar provision is now made for an emergency, but no public intimation has been given of the existence of a dormant connnission. -The question of additional allowances to the Governor-General was raised in 1901 by the Secretary of State, and the proceedings and disagree- ments thereon in the Commonwealth led to a request from Lord Hopetoun that he should be recalled. See Commonwealth Parliamentary Papers, 1901, vol. ii., pp. 827, 833. 'Advantage has been taken of the power to authorize State Governors to sign warrants for the expenditure of money (P.D. 1901, p. 1,249), and to appoint a Commissioner to open the Parliament (Senate Journal 1904). THE GOVERNOR-GENERAL. 161 wealth, and shall have and may exercise in the Common- wealth during the King's pleasure but subject to this Constitution such powers and functions of the King as His Majesty may be pleased to assign to him." The modern theory of colonial government regards that Government as residing in the King ; so the Legislative and Executive Acts are Acts of the Crown. This is recoofnized in the Commonwealth Constitution, which makes the King a part of the Parliament and declares that the executive power is vested in the King (sec. 61). The character of the Governor- General then is essentially representative • he is the delegate - of the King to exei'cise . certain powers of the Crown. In this sense he is Vice-Regal : in the summoning, proroguing and dissolving Parliament, in assentin<; to legislation, in appointing to and removing from offices. The expression " His Majesty's representative " has not (it is believed) here- tofore been used in anj- Statute, Letters Patent, or Commis- sion, but it is a familiar colloquialism, and is found even in the Rules and Regulations for the Colonial Service.^ As used in sees. 2, 61 and ()8, its sole effect, it is submitted, is to emphasise the delegate character of the office and its powers. It docs not assert that the Governor-General is a Viceroy in the sense denied to Colonial Governors by the Privy Council- — that he enjoys as a natural person or au official those legal privileges which belong to the King^ whether regarded as a natural man, as the head of the State, or as a juristic entity bearing the persona of the State. Nor does it assert any pre-eminence of dignity over the States' Governors, who within their sphere arc not less representatives of the Crown. The question which arises in regard to the Governor- General is of another kind. Heretofore the prerogative iSee Rules, i:? and 159. ■Cameron v. A'yCt. li Kiidpp. 3.32; Hill v. Dlg). They hold office during 168 THE COMMONWEALTH OF AUSTRALIA. the pleasure of the Governor-General ; their offices are such as the Parliament prescribes, or in the absence of provision, as the Governor-General directs (sec. 65). Tlie annual sum of £12,000 per annum is appropriated to the payment of the salaries of the Ministers of State, but Parliament may alter the amount (sec. 65). Unlike most Colonial Constitutions, the Commonwealth Constitution goes far in establishing an organic relation between the Ministers and Parliament. For not merely does the Constitution, following the British and Colonial Constitutions, absolve Ministers from the general disqualifi- cation of holders of offices of profit for a seat in Parliament (sec. 44), but by sec. 64 it provides that " after the first general election no Minister of State shall hold office for a longer period than three montlis unless he is or becomes a Senator or a Member of the House of Representatives." The other provisions regarding the Ministers of State, though they are made with a view to the Cabinet System, do not preclude very extensive modifications of that system. There is no recognition of the Cabinet, for, as pointed out, the Federal Executive Council is not necessarily identical in constitution or functions with the Cabinet, There is no recognition of the collective responsibility of the Ministers of State; sec. 64 treats them as separate administrative officials ; and there is no hint of a Prime Minister. There is nothing to prevent the virtual establishment of Ministries elected by Parliament^ which at one time found some favour in Australia, though they cannot be given the fixity of tenure which the instability of political parties has recom- mended to many persons. All that has been done is to establish a Parliamentary Execjitive ; the rest is left, as ^The newspaper accounts of the formation of the Fisher Government in 1908 are that the Ministers were selected by the Labour meiuliers of the Commonwealth Parliament in caucus, and that their offices were assigned on the recommendation of the Prime Minister. THE MINISTERS OF STATE. 169 in England and the Colonies generally, to custom and convention. It has been already stated that the development of the Executive Council is a matter of uncertainty — it may or may not ultimately be identical in constitution with the Cabinet. There are some other points connected with the Ministry upon which a comparison may be made wath English practice. In England, the Cabinet and the Ministry are not identical bodies, the latter includes a large number of officers " liable to retire upon political grounds " (to use an expression common in the Colonies) who are able to sit in Parliament. In Australia there are no Ministers outside the Cabinet ; and habitual inclusion of law officers in the Cabinet has had the result of making those appointments dependent much more on political than professional position. The Constitution Acts designate a limited number of offices tenable wath a seat in Parliament; and the Connnonwealth Constitution, by enacting that, until the Parliament other- wise provides, the Ministers of State shall not exceed seven in number, practically made it imperative that all the Ministers should be in tlie Cabinet. Another point of difference between English and Australian jjractice is the existence of what are sometimes called " honorary Ministers" or " Ministers without a portfolio " in the Colonies. In spite of occasional exceptions, the rule seems to be firmly estab- lished in England that the Ministry is a body of depart- mental chiefs, restricted (to adapt Addington's description of the Cabinet) to the persons " whose responsible situations in office require their being members of it." It is true that the rule has been broken; that llif Duke of Wellingttui, Lord Lansdowne and Lord John Russell were members of the Cabinet without holding any office, but strong objections were made to the practice, in one case by tlie Prime Minister, Sir Robert Pocl, in another by the Queen herself. In 170 THE COMMONWEALTH OF AUSTRALIA. Australia, on ths other hand, every Cabinet includes from one to three members who hold no office and receive no salary. They are not to be compared with the light adminis- trative offices — such as the Privy Seal, the Chancellorship of the Duchy of Lancaster, or the First Lordship of the Treasury, held by important members of the Cabinet with heavy parliamentary or party duties. With rare exceptions, they are held by gentlemen of whom it may be said, without intending any disparagement, that they are politically deemed of less account for the moment than their colleagues ; and who will have claims to promotion wdien a vacancy occurs.^ The " honorary Ministers " or " Ministers without a portfolio " are generally members of the Upper House, and sometimes the only members of the Government in that House, for it is not unknown that the Prime Minister finds himself compelled to distribute all his salaried offices in the House u^^on whose support the Ministry mainly depends. The Commonwealth Cabinet has always contained two honorary or non-official members, and the practice may be be expected to form a regular feature in the Common- wealth.'' One of the honorary Ministers receives the dignitied title of Vice-President of the Federal Executive Council. The successive steps taken upon the inauguration of the Commonwealth are interesting as illustrating the relation of the various authorities. By virtue of the Royal Pro- clamation of I7tli September 1900, the federating Colonies were united in a Federal Commonwealth on 1st January 'They must be qualified. Mr. Deakin on forming his Ministry in June, 1909, became Prime Minister without assuming any administrative office. -In some Colonies, the honorary members, besides representing the Ministry in the Upper House, often assist from time to time in the work of Departments where there is heavy pressure upon a Minister, and particu- larly in the Department of the Prime Minister, or in any other in which the parliamentary duties are specially onerous. THE MINISTERS OF STATE. 171 1901 ; and under sec. in. of tlie Act the Queen had on 29th October 1900 constituted the office of Governor-General and Commander-in-Cliief and had appointed the Earl of Hope- toun thereto. On 1st January 1901, the Royal Proclama- tion was read at Sydney, the Governor-General took the prescribed oaths, and tliereupon made proclamation that he had a.ssumed the office. The next step was the constitu- tion of the Federal Executive Council, which consisted of nine (jentlemen who were to form the first Cabinet. Then the Governor-General proceeded " with the advice of the Federal Executive Council " to establish the following Departments of State, viz. : — The Department of External Affairs. The Attorney-General's Department. The Department of Home Affairs. The Department of the Treasury'. The Department of Trade and Customs. The Department of Defence. The Postmaster General's Department. Finally, the Governor-General appointed seven members of the Federal Executive Council to administer the Depart- ments respectively allotted to them.^ In accordance with the doctrine of ministerial responsibility all the notifications of these executive Acts were signed by Sir Edmund Barton, the gentleman who had successfully undertaken the task of forming a Ministry. On the establishment of the Common- wealth, the Departments of Cu.stoms and Excise in t'ach State became transferretl to llic Connnonvvealth ; and on 1st March under proclamations of 14tli Februar}- and 25th February respectively, the Departments of the public service in the States " posts, telegraphs and telephones," " naval and military defence," passed under Federal authority. ^ See Commonwealth of Aw'tralia Gazette, No. 1, 1st January, 1901. [172] CHAPTER V. THE ORGANIZATION OF COMMONWEALTH ADMINISTRATION. The general nature of the departments of State is indicated by their titles.^ The Department of External Affairs was described by the Prime Minister (Sir Edmund Barton) in 1901^ as embracing immigration and emigration, tlie influx of criminals, the relations with England, communications with the Governor-General and the several States, the Executive Council and the officers of Parliament. Some of these matters hardly fall under the title of the Department, but their presence is accounted for by the fact that the Depart- ment was organized in tlie first instance in view of its assumption by the Prime Minister, It lias, in fact, been presided over by the Prime Ministers in four of the seven Commonwealth Governments ; in the two Labour Ministries the Prime Minister has taken the office of Treasurer, and Mr. Deakin (1909) is Prime Minister " without a portfolio."^ To the matters enumerated by Sir Edmund Barton we may add the relations between the Commonwealth Government and ^A tabular statement of the piiuoipal matters under tlie control of the several Departments will be found in the Gommomcealth Official Year Book, 1901-8, p. 970. -The Melbourne Age, 18th January, 1901. ^Usage has established the term "Prime Minister," as the title of the First Minister of the Commonwealth, and "Premier" as that of the First ^Minister of the State. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 173 its representative in England, tlie Government of Papua, the Mail Services to the Pacific Islands, and such matters as are undertaken by arrangement with countries outside Aus- tralia, e.g., the investigation of tropical diseases, the cost of which appears on the estimates of this Department. The Treasury discharges the functions ordinarily asso- ciated with that office. Technically, the Auditor-General and his staff belong to the Department. Actually, of course, much of their work consists in checking the Department, and they have an independent position as explained in con- nection with the system of issue and audit. The Department of Home Affairs corresponds with no specific head of federal authority, and so constitutes a sort of " omnibus " Department. In the speech already referred to, the Prime Minister stated that the matters connnitted to the administration of the Department would include public works, the question of the federal capital, the Inter-State Commission, federal elections, public service regulations, old-age pensions, and the acquisition and construction of railways where the States concerned have given their con- sent. The last of these subjects has not yet advanced to the stage of administration, and the course of administra- tive organization points to the Department of Trade and Customs as that which is likely to be concerned with the Inter-State Commission whenever it is constituted. Old- age pensions are administered by the Treasury. But the administration of the Electoral Acts, of the Public Service Acts, census and statistics, meteorology, and the Lands (for public purposes) Acquisition Act belongs to the Minister of Home Aflfairs, as well as the general control of public works. The DeparTxMent of the Attorney-General includes the advisinir of the Government, the drafting of Govern- ment bills, and the promulgation of Acts of Parliament and 174 THE COMMONWEALTH OF AUSTRALIA. statutory rules, and the editing of the official collections in which they are contained, the conduct, through the sub- department of the Crown Solicitor, of legal proceedings to wdiich the Commonwealth is a party, and such administrative matters as arise in relation to the Commonwealth judiciary, includingf the Court of Conciliation and Arbitration. The Department of Trade and Customs, in addition to the administration of the Customs and Excise laws, under- takes patents, trade-marks, copyright and designs, and quarantine. Acts relating to Trade and Commerce, includ- ing navigation and shipping, fall to the Department, and important powers are granted to the Minister under the Australian Industries Preservation Acts 1906 and 1907. The Department co-operates with the Department of Ex- ternal Affairs in executino- the immio-ration laws. Some questions arise as to the extent of the powers for the administration of laws relating to commerce which may be committed to the Department or its officers, having regard to the provision made by the Constitution for an Interstate Commission (sec. 101).^ The Postmaster-General's Department administers the law relating to postal, telegraph and telephone services, of which the chief is the Post and Telegraph Act 1901. The Department of Defence has the administration of the Defence Acts 1903-4. The most important fact to be noticed in connection with this Department is that the whole naval and military organization of the Common- wealth is a matter to be undertaken by the Ministry, which is responsible therefor to Parliament. It is important that this should be realized, hrst, because there has been a good deal of misconception in the Colonies as to the relation of the control of tlie forces to responsible government, and iQn this subject, see Huddart Parker v. Moorhtad; Ajypleloti v. Moor- head, (1909) C.L.R. ORGANIZATIOX OF COMMONWEALTH ADMINISTRATION. 175 secondly, because the terms of tlie Constitution expressly vesting the command in tlie Governor-General (sec. 68) might be cited in confirmation of this misconception.^ In England the King gave up the personal command of the army upon the establishment of the office of General Commanding in Chief in 1708. In the Colonies, however, the civil and military government have nominally remained in the hands of one person, for the Governor's Connnission has designated him Commander-in-Chief or Captain-General in the possession. For this there are several reasons. In the first place — and this is true of several of the Australian Colonies — the military command has often preceded the civil government, and it was but gradually that the govern- ment passed out of the military to the civil state. In the second place, even in Colonies which have reached an ad- vanced stage of self-government in civil matters, defence has been regarded as in the main an Imperial affair ; and notwithstanding the general withdrawal of the Imperial forces from the self-governing Colonies, the local forces which have been raised and maintained by the Colonies have generally been under the immediate direction of Imperial officers, who for maii}^ reasons were disposed to regard themselves as outside the scope of the local government of the Colony. Even Chief Justice Higin- botham, above all others the champion of independence in local affairs, treated the control of Her Majesty's military and naval forces as a matter in which the Gov- ernor was bound to obey instructions given to him l)y the Crown directly or through the Secretary of State. In all these circumstances, it was natural that there should be not a little friction. The Governor's own position is defined by the Colonial Office Regulations.- Though bearing 'See preceding chapter. -Chapter II., sec. ii. 176 THE COMMONWEALTH OF AUSTRALIA. the title of Captain-General or Commander-in-Chief, he is not, without special appointment from Her Majesty, invested with the command of Her Majesty's Regular Forces in the Colony, and in the event of the Colony being invaded, the officer in command of Her Majesty's land forces assumes entire military command over the forces. Most of tlie difficulties that have arisen are de- scribed by Mr. Todd in Parliamentary Government in the Colonies, chapter xii., " Imperial Dominion exerciseable over self-governing Colonies : in naval and military matters."^ The most important of these questions has been as to the right of communication on military affairs between the Governor and the officer commanding the forces, without the intervention of tlie Colonial Minister of Defence. The principle is now generally recognized that the forces locally raised and maintained are, in the words of Sir Henry Parkes, as much subject to the responsible government of the Colony as any other branch of the public service. The provision of sec. 68 of the Commonwealth Constitution, vesting the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen's representative, is intended to carry out these principles, and in no way points to the exercise of indepen- dent powers.^ The whole military and naval organization of the Commonwealth is a matter to be undertaken by the Ministry, which is responsible therefor to the Parliament. In this oro;anization there must be some division of func- tions between military and civil officers; and if a reasonable standard of efficiency is to be maintained, appointments, promotions, dismissals, and discipline must be treated as ^See also Chapter IV., p. 1.35. -The first Ceneral Order of the Coinmaiuler-in-Cliief in the Common- wealth was issued in connexion with the inauguration of the Common- wealth, and was addressed to the Minister of State for Defence, directing him to inform the Major-Ceneral commanding the forces, &c. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 177 non-political matters. But this organization is subordinate to the cardinal principle of ministerial responsibility ; and the question of the limits within which Parliamentary con- trol is legitimate in matters of administration is not peculiar to the subject of defence. A consideration in detail of the internal oro^anization of the several Departments lies beyond the scope of this work ; but something may be said about the organization of the administration generally. This in the Commonwealth, as in the several States, is provided for by Statutes and Regula- tions issued thereunder. It is therefore a part of the law, cognizable by the Courts, and not as in England a mere matter of administrative regulation giving; rise to no legal relations. The CommonweaUh Public Service Act 1902 provides that each of the Departments of State shall have a per- manent head, who is called the Secretary to the Depart- ment, except in the case of the Customs, where he is called the Comptroller-General. The permanent liead is " respon- sible for its general working and for all the business thereof," and advises the Minister of the Department in all matters relating thereto.^ Various powers of supervision and control are committed to him by Statute and Regula- tions in respect to the officers of his Department and their work.^ The Comptroller-General of Customs di tiers from the other permanent heads in more than name, for he is an officer charged as jpersona desigixata, with various dis- cretionary powers under the Customs and Excise Acts, and with very important powers under the Australian Industries Preservation Acts 190G-7. In spite of the general description of pernuuient heads their actual functions must vary considerably with the 'Sec. 12 and Schedule 2. ^Sec. 12. 178 THE COMMONWEALTH OF AUSTRALIA. Department and the character of its work. Where there is a large amount of routine and detailed work in a Department, with a large staff of officers throughout the Commonwealth (as in the case of the Customs and Postal Departments), and where the Commonwealth was the suc- cessor to State Administratons, it has been found convenient to retain the States as units of administration, and to estab- lish chief officers for each State who exercise there the ordinary functions of a permanent head. This is specifically provided for by the Customs Act 1901, sec. 8 (Collector of Customs), and the Post and Telegraph Act 1901, sec. 7 (Deputy Postmaster-General). In such a case the relations of the central staff to the State staff may not be very clearly defined, and the pending inquiry by the Postal Commission appears to indicate that in that Department there is some friction between the two. In the Defence, Home and Treasur}^ Departments, also, the States are, for certain purposes, treated as distinct units of administration. In Defence, the j)rimary distinction is, of course, between the civil staff and the military and naval. Here, as wherever the work of a Department is mainly professional and expert, the non-professional permanent head can hardly be very active in determining policy, while the execution of plans must in the main lie in professional hands. Tlie advisory function in the Commonwealth mainly belongs to the Coun- cil of Defence ; there are separate Boards of Administration for the Army and the Navy ;^ and the forces themselves are respectively under the direction of an Inspector-General and a Director. The principal civil administration and the headquarters staff are at the seat of Government, while the '^Defence, Acts 1903-4, sec. 28. See generally, Report on the. Department of Defence, from 1st March, 1901, to 30th June, 1906. Commonwealth P.P. 1906, vol. ii., No. 79. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 179 several States are constituted Military Districts under a Commandant. Tlie miscellaneous matters collected within the Depart- ment of Home Affairs recjuire different systems of adminis- tration, according^ to their nature. The Comvionivealth Electoral AcU constitute what is practically a sub-depart- ment with its own orcranization under a Chief Electoral Officer for the Commonwealth, and for eacli State there is a Commonwealth Electoral Otffcer, who is the principal elec- toral officer for that State.^ The Public Service Acts are in the same position, as will be seen — they are administered by an independent Public Service Commissioner, assisted by a staff of inspectors. Census and Statistics, again, is a technical subject forming a separate branch of work under the Commonwealth Statistician;^ the same is true of Meteor- ology, which is under the direction of the Commonwealth Meteorologist.^ In the case of tlie Treasury, the Auditor-General forms a distinct sub-department acting as a check and control upon the Treasury itself as well as upon other Departments. He has power to appoint State deputies. The administration of the Invalid and Old-age Pensions Act 1908 is under the immediate control of a Connnissioner of Pensions,'* with Deputy Commissioners for each State. In the )uain, how- ever, the work of the Department is under tlie immediate direction of the permanent head, who as the principal financial adviser of the Minister has peculiarly responsible and important duties. In the Attorney-General's Department the adniiuistrative "^ Commoniceallh Electoral Acts 1902-1903, sees, o and (>. "Census and Statistics Act 1905. "" Meteorology Act 1906. Mn the first instance, the Secretary to the Treasury his been appointed Commissionur. 180 THE COMMONWEALTH OF AUSTRALIA. work is comparatively small, and the permanent head, in addition to his duties in administration, acts as a lesral adviser to the Government and as Parliamentary Draughts- man. It must be remembered that in Australia, unlike England, the Attorney-General is a member of the Cabinet, so that the ofBce may be filled by reference to political rather than professional qualifications. It is, therefore, the more important that there should be a permanent official of high legal qualification, a necessity which has been recognized in some of the Colonies by the appointment of a Solicitor- General as a non-political and permanent officer. The work of the Department of External Affairs is primarily political rather than administrative, so that the responsibility of the political head is more personal and less purely official than in other Departments, where the Minister can hardl}^ be expected to have an intimate know- ledge of extensive and intricate details. Collection and Issue of Public Money : Audit of Public Accounts. — One of the first Acts of the Parliament of the Commonwealth was, under the power given by sec. 97 of the Constitution, to provide machinery for the collection, custody and issue of Commonwealth money. Legislation of this kind has more than one pui'pose. It serves to secure the constitutional responsibility of the Executive to Parliament by preventing the expenditure of money upon objects not sanctioned by Parliament. It pre- vents leakages whether in collection or expenditure ; it prevents the interception of public moneys on the way to the Treasury ; it secures that money voted for a particular purpose shall be issued only for that purpose, and, being so issued, spent on that purpose — that it does not stick any- where. In short, " there should be a real control which will follow the money from its collection from the taxpayer until the final appropriation of it in payment of the public ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 181 creditor " (Sir G. C. Lewis's Memorandum on Financial Control, Appendix to Report of Select Committee on Public Moneys 1857— Sess. Papers, No. 54, Sess. 2, 1857). Tlie machinery'- should be devised so as to promote efficiency and economy in the management of public business, while the public accounts should be in sucli a form as to make it possible to know, with ordinary care and intelligence, the real state of the iinances at all times. The Constitution lays down the leading principles that all moneys or revenues of the Commonwealth shall form one Consolidated Revenue Fund (sec. 81), and that no money shall be drawn from the TreasurjT- except under appropriation made by law (sec. 83). In the English system and in the systems already at work in the several States, the Commonwealth Parliament had models ready to hand, and the Audit Act 190P follows familiar lines. The scheme of the Act of 1901 required that all money received on behalf of the Connnonwealth should be paid immediately and without deduction into " The Common- wealth Public Account," an account opened at such bank or banks as the Treasurer might direct. In one case only — that of the Money Order business of the Post Office — was this principle departed from; and a "Money Order Account" was established which might be operated on by the Post- master-General, or any other person authorized by him, for the purposes of the money order business. Even in this case the Postmaster-General was required at the end of each month, or oftener if need be, to pay in to The Connnon- wealth Public Account all money received as revenue (sec. 20). The system, however, proved inconvenient in practice, and important modifications were introduced by the Audit Act 1906. That Act (sec. 13) provides that a number of 'Aniendetl by the Audit Ad 1906, the Acts now being printed and cited together as the Audit Acts 1901-1900. 182 THE COMMONWEALTH OF AUSTRALIA. scheduled accounts, which are in the nature of " trading accounts,"^ should be separated as " Trust Accounts " from the Consolidated Revenue, and to them respectively should be paid — (a) all money appropriated by law for the purpose thereof ; (b) all money received from the sale to any person or Commonwealth Department of any articles purchased or produced, or for work paid for, with money standing to the credit of the account ; (c) all money paid by any person for the purpose of tlie account ; and (d) pay due to a member of the militia force and unclaimed in the hands of an accounting officer for three months. It is provided that money standing to the credit of any Trust Account may be expended for the purposes of the account; while in the case of tlie Money Order Account it is provided that it may be used for the receipt or payment of any public moneys (sec. 5). Further, the Treasurer is given power to establish additional Trust Accounts and to define the purposes for which they are established (sec. 13). All moneys in any Trust Account are to be deemed to be money standing to the credit of the Trust Fund. The Trust Fund is one of the three funds into which the original Act separated the accounts at the Treasury. As originall}^ defined, it consists of money lield by the Common- wealth for or on account of or for the use or benefit of any person (sec. 27). All money remaining unclaimed in the Trust Fund for six years falls into the Consolidated Revenue Fund, and the claim thereto is determined, subject to a power in the Government in its discretion to pay any lapsed claim (sec. 30). The Loan Fund consists of all moneys raised by way of loan on the public credit of the Commonwealth, and placed to the credit of the Loan Account (sec. 55). The detailed provisions of the Act concerning the collec- ^E.rj., see Governmehl Gazette, .31st January, 1902. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 183 tion and banking of public money (sees. 20-23), the receipts and statements to be forwarded to the Treasurer (sec. 24), and the Auditor-General (sec. 25), are made applicable to the Trust Fund (sees. 27 and 01 (2) ), and the Loan Fund (sec. 59 (2) ), as well as to the Consolidated Revenue Fund. They are supplemented by Regulations issued by the Governor-General in Council. From the collection and keeping of the money of the Commonwealth, we come to its appropriation and issue. The provision of the Constitution that no money shall be drawn from the Treasury except under appropriation made by law (sec. 83) has been already referred to. As to the Loan Fund, the Audit Act (sec. 57) provides that no money standing to the credit thereof shall be ex- pended save under the authority of an Act of Parliament showing the nature of the proposed work or other object of the proposed expenditure, and the amount of the proposed expenditure in each case, and the total amount proposed to be expended for such work or object. From the Trust Fund no money may be expended except for the purposes of such fund or under the authorit}^ of an Act (sec. 61). The mode of operating upon tlie Public Account is pre- scribed by the Audit Act, sees. 31-37, and is made applic- able also to the Loan Fund (sec. 59 (1)) and the Trust Fund (sec. 62 (1) ). After declaring that no mon^y shall be issued except in the manner provided (sec. 31), the Act introduces us to the first of the important functions cast upon the Auditor-General. The Treasurer (sec. 32) pre- pares statements of money required for transmission to the Auditor-General, whose duty it is before countersigning the instrument to " ascertain that the sums therein mentioned are legally available for and applicable to the services or purposes mentioned in such instrument." If satisfied, he countersigns the instrument, and retuinis it to the Treasurer, 184 THE COMMONWEALTH OF AUSTRALIA. who then submits it to the Governor-General for his siofna- ture. When signed by the Governor-General the instru- ment becomes the warrant for the issue by the Treasurer of drafts and cheques on the Public Account in the Banks for the several services or purposes (sees. 32, 33). If the Auditor-General is not satisfied, he returns the instrument with a statement of the sums not found by him to be legally available, together with the grounds for his decision. These provisions are followed by detailed arrangements as to the mode of certifying and paying public accounts.^ Sec. 36 contains the important provision that every appropriation made out of the Consolidated Revenue Fund for the service of any financial year shall " cease to have any effect for any purpose at the close of that year, and any balance of the moneys so appropriated which shall then be unexpended shall lapse." If the unexpended balance is required for the service in question, it must be again voted by Parlia- ment as part of the next year's appropriation. An express exception is made in favour of the pay of members of the Militia forces (sec. 36 (1) ), and practically a great inroad is made upon the " cash system " by the establishment of Trust Accounts under the Audit Act 1906 and the power to the Federal Treasurer " to establish additional Trust Accounts and define the purposes for which they are established."" Some flexibility of the specific appropriations is provided for by sees. 36b, 36c, and 37, of which the last, authorizing the alteration of the proportions assigned to particular items in any subdivision of the annual supplies, forbids the appli- cation of the power so as to augment or add to any salary or wages. By sec. 36a expenditure in excess of specific appropriations or not specifically provided for by appropria- ^See further Regulations, Government Gazette, 24th January, 1902. -AtLdit Acts 1901-6, sec. 62a. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 185 tion, may be charged to such heads as the Treasurer may direct, provided that the total expenditure so charged in xiny financial year after deduction of amounts of repay- ments and transfers to heads for which specific appropria- tion exists, shall not exceed the amount appropriated for that year under the head " Advance to the Treasurer." There remains the function of inspecting and auditing the Commonwealth accounts, which is committed to the Auditor-General. This official, who must not be a member oi the Executive Council or of the Parliament of the Com- monwealth or an}^ State (sec. 5), holds office during good behaviour and may not be removed therefrom except upon an address from both Houses of Parliament (sec. 7). In ■certain contingencies, however, he is deemed to have vacated his office (sec. 5 (2) ), and the Governor-Genei"al has a care- fully guarded power of suspension (sees. 7 (2) and (3) ). His salary is fixed by the Act at £1,000, which is thereby permanently appropriated for the purpose (sec. 4). Here there are three operations to be regarded. In tlie first place, there is provision for an inspection and detailed audit of the books and accounts of all persons having control of public moneys (sec. 45), and this extends to reporting to the Treasurer on the circumstances of departmental contracts and the sufficiency or excess of public stores. This function is carried out by persons appointed by the Auditor-General (sec. 11), who are in fact assigned to the several larger Departments of the Commonwealth to make a daily audit of their accounts.^ In the second place, there is proceeding continuously through the year an independent audit in the Auditor- General's office. For this purpose, all persons charged with receiving (sec. 35), or disbursing (sec. 39), Commonwealth moneys are required to send a statement monthlj^, verified ^Treasurer's Statement, P.D. 1901, p. 1'24'.). 186 THE COMMONWEALTH OF AUSTRALIA. by statutory declaration, to the Auditor-General. Banks at which the Commonwealth Public Account is kept must send, as required by the Treasurer, a " Bank Sheet " to the Treasurer and to the Auditor-General (sec. 38). The Treasurer is required to keep a " Cash Book," and to fur- nish daily a " Cash Sheet " to the Auditor-General (sec. 40). The Auditor-General, having then the several statements,, accounts and vouchers before him, proceeds to audit, a function which includes the important duty of determining whether the forms of issue and payment have been duly complied with, and whether the mone}^ issued has been spent on purposes for which it was legally available (sec. 41). If the Auditor-General is satisfied that the accounts are correct, and that the law has been complied with, he grants- an acquittance to the Treasurer (sec. 42 (1) ). If not, he must surcharge the Treasurer (sec. 42 (2)), who in turn surcharges any defaulting officer concerned (sec. 43), and takes such steps as arc necessary to recover the money in question. The officer is given a right to appeal to the- Governor-General, who may m.ake such order directing the relief of the officer as may appear to be just and reasonable (sec. 4-i). Finally, the Act requires the publication of periodical statements for the information of the public and of the Parliament. Every quarter the Treasurer must publish in the Gazette a statement in detail of tlie receipts and expenditure of the Consolidated Revenue, Trust and Loan Funds, with a comparative statement for the corresponding period of the preceding year (sec. 49) ; and must annually prepare and transmit to the Auditor-General a statement of all receipts and expenditure from the several Funds, the expenditure to be set out in the case of the Consolidated Revenue Fund according to the classification adopted in the appropriation (sec. 50). The Treasurer's annual statement ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 187 forms tlie principal material upon which is based the report which the Auditor-General is required to present annually to both Houses of the Parliament (sees. 51-53) — a signifi- cant provision recognizing that in matters of finance the Senate fills a different position from the House of Lords or Leojislative Councils. We have thus outlined the system from the collection of revenue to the report to the Parliament upon its expendi- ture, which at present is the final stage of the matter. As yet the Commonwealth Parliament has not followed the example of the House of Commons and some of the State Legislative Assemblies, in appointing a Committee of Public Accounts. The Organization of the Public Service, as distin- guished from that of the administration of the departments, must be briefly considered. The question of departmental services, as against a single public service the members of whicli pass in course of promotion from one Department to another as vacancies occur, has long been settled in Aus- tralia in favour of the latter system. This, then, is the plan adopted in the Commonwealtli Public Service Act 1902, for, as has been already noticed, the Commonwealth follow^ed the example of the Colonies in putting the regula- tion of its servants upon a statutory basis. The principle suffers certain necessary modifications ; for instance, the members of the naval and military forces constitute dis- tinct services governed by their own rules, and the Act generally is declared not to apply to classes of persons enumerated in sec. 3 of the Act, which include officers to whom " on the recommendation of and for special reasons assio-ned by the Commissioner the Governor-General de- clares that the Act shall not apply." The service is divided into four divisions — Administra- tive, consisting of the permanent heads and "chief officers " 188 THE COMMONWEALTH OF AUSTRALIA. of departments, with such persons as the Governor-General on the recommendation of the Public Service Commissioner directs to be included in the Division ;^ Professional, con- sisting of persons whose work involves special skill or tech- nical knowledge " usually acquired in some profession or occupation different from the ordinary routine of the Public Service," and wdiose offices are directed to be included in the Division ; Clerical ; and General, the last including all persons in the Public Service who are not placed in one of the other Divisions. Appointments are made to the Professional, Clerical and General Divisions after examination, " designed to test tlie efficiency and aptitude of candidates for employment in such several Divisions," and it is s]Decially directed that the educational examination for the General Division is to be of "an elementary or rudimentary character."- The Clerical Division consists of five classes, of which four have five sub-divisions and the fifth or lowest, six f and all appoint- ments to that Division are made to the lowest sub-division of the lowest class. In the fourth and all higher classes, no person may be promoted except to the next sub- division above that in which he is serving, and must serve in any sub-division twelve months before further pro- motion.* Promotion from class to class is made only as vacancies arise ; sub-divisional promotion is irrespective of vacancies.^ But these provisions are subject to an important qualification whereby on the report of the Permanent Head of a Department, and tlie recommendation of the Commis- ^There was some friction between the Commissioner and the Postmaster- General in respect of the proposed inclusion of the Assistant-Secretary to the Post Ofiice in this Division — see P.P. ^Sec. 28. * ^Sec. 19 and Third Schedule. *Sec. 23. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 189 sioner, and the approval of the Governor-General, an officer may be promoted from one class to the next higher class, although he has not served a year in each sub-division ^ — a provision which, properly administered, may do something to combine, in the words of Mr, Deakin, " statutory control with an infusion of something of tlie spirit and energy of private business affairs."- The principle of promotion is very carefully stated so as to avoid two evils which have been common in colonial administration. The first of these is regard to mere seniority, combined with absence of mis- conduct, the second that of the transfer of officers on the o-round of seniority to a Department with the work of which they were unfamiliar. It is accordingly provided that on a vacancy in any Department, an appointment may be made from among the officers of the Department, regard being had to relative efficiency, and in case of equal efficiency and then only, seniority is to be regarded f while if an appointment from some other Department would appear to lead to a better performance of the work, recourse may be had to properly qualified officers of other Departments, with the same regard to efficiency and seniority.'^ Efficiency is dciined as " special ([ualifications and aptitude for the dis- charo-e of the duties of the office to be filled, together with merit and grood and dilijrent conduct."^ The road to promotion to the highest offices in the service is thus open to all public servants, and normallj^ no appoint- ment can be made even in the Professional or Administrative Divisions except in the way of regular promotion.*^ But if it appear that there is no person available in the pubHc »//;. -Parliamentary Debates 1901, p. 129S. =•860. 42. See also sec. 44 (I). *Sec. 42. '■Ih. "Sec. 31. 190 THE COMMONWEALTH OF AUSTRALIA. service as capable of" filling flie vacant position in these Departments as some person outside the service, the outsider may be aj^pointed. This is a wide discretionary power, for it means nothing less than that in determinino; -who is the fittest person for such a j^osition, the authorities have as unrestricted a field of choice as a private employer. It is, however, carefully guarded — there must be a report from the permanent head, a certificate and recommendation from the Commissioner, and as the appointment is made by the Governor-General, Cabinet approval also is required ; while all the papers have, in such a case, to be laid before Parliament.^ In the making of appointments and promotions, experi- ence has indicated pretty clearly the objects to be kept in view and the danger to be avoided. The several Depart- ments must be provided with a sufficient number of capable officers ; therefore those primarily resjDonsible for the administration of the Department must be able to make their needs lieard. But there is a well-known tendency of Departments — not in Australia only — due to various causes, to take a rather excessive view of their needs, or, at any rate, a reluctance to admit the necessity for a diminution of their staff; while the evils of "patronage" where the political head has a free hand in appointments are even more notorious. Experience also shows that in the long run efficiency sufiers from the prevalence of discontent amongst officers, so that care must be taken to offer hopes of advance- ment and not to disappoint reasonable expectations. But " seniority " alone is a very poor assurance of efficiency. " Merit," then, must be regarded ; but merit, on the one hand, must not be allowed to become simply absence of offence ; on the other, it must not be merely another name for influence and favouritism. iSec. 3L ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 191 These are tlie conditions wliicli govern the provisions of the Act as to the arrangement of the staff". The permanent head, who is acquainted with the needs of his Department and the capacity of officers, reports to the Public Service Commissioner, who inquires and satisfies himself as to the work, the officer, and the necessity for the office, and has the furtlier advantage of a knowledge of all the Depart- ments, so that he has standards for comparison. The Commissioner then makes his recommendation to " the Governor-General," which gives the political head of the Department concerned an opportunity of considering the decision and laying before the Cabinet any objections he may have. The Ministry may reject the Commissioner's nominee for any office, whereupon the Commissioner has to make another recommendation. But in all cases where the nomination is rejected, the reasons therefor are forth- with to be laid before Parliament (sec. 44 (3) ). The salaries of all officers except those who are intended to be independent of Ministers — the Judges, the Auditor- General, and the Commonwealth Public Commissioner and his Inspectors — are appropriated annually by Parliament. But the salaries of the several classes and subdivisions of the Clerical Division are fixed by a Schedule to the FiMic Service Act and range from £40 to £G00. An important provision applicable to the Clerical and General ]^i\isions declares that every person in sucli Divisions who lias served for three years and is 21 j'ears of age shall receive not less than £110 a ycar,^ subject, in the case of the Clerical Divi- sion, to passing a prescribed examination to show that lie is capable of performing the work of an office to which sucli a salary is attached. The provision, like the rest of the Act, applies to women as well as men, and is a demonstra- tion of the State's function as model emplo3'er. If its iSeca. 21 and '25. 192 THE COMMONWEALTH OF AUSTRALIA. object be, as has been represented, to encourage young men in the service to marry, tliat may be counteracted by its influence on young women, who are required to leave the service on marriage. The remuneration of the Professional and General Divisions is prescribed by regulation, while the salaries of the Admin- istrative Division are not fixed, but are such as are provided in the Appropriation Act, an invidious distinction which exposes the permanent heads to Parliamentary criticism and attack, and encourages the notion that they share the political responsibility of their chiefs. No pensions are paid to officers, and consequently the provision that " every officer having attained the age of 60 years shall be entitled to retire " does not confer any highly valued privilege. Between 60 and 65 he may be called on to retire, and at 65 he must retire, but may upon the advice of the Commissioner be retained for 12 months. In place of pensions, all public servants are required to insure their lives for an amount Vvdiich increases with the increments to their salaries. In general the duties of public servants are governed by the Regulations issued by the Governor-General in Council, of which the principal are those contained in the Govern- ment Gazette, December 23rd, 1902. In regard to them the only matter which appears to call for special notice is the provision relating to the political activity of the public servants. By the Original Regulations^ " officers are ex- pressly forbidden to publicly discuss or in any way promote political movements. They are further forbidden to use for political purposes information gained by them in the course of duty.""- This was repealed by the Labour Ministry in 1 Regulation 4L -This prohibition M'as interpreted as applicable to State as well as Com- monwealth politics. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 193 1909/ and in place of it a new Regulation was promulgated, whereby (a) "An officer shall not publicly comment on the admin- istration of any Department of the Commonwealth : or (b) Use for any purpose other than the discharge of liis official duties information gained by or conveyed to him throuofh his connexion with the Public Service." The result is, therefore, that Connnonwealth officers may, subject to these qualifications, take the most active part in Commonwealth politics, and may even be accepted candidates for Parliament, though they must resign before nomination.^ So far as taking part in State politics is concerned, they are without restriction. This new departure is sharply contrasted with the action of the State Parliament in Victoria in 1903,^ which was so far impressed with the danger of the political activity of public servants as to segregate them in special constituencies. That enactment was repealed in 1906.^ The varying policy on this subject indicates the important part which tlie public service vote plays in Australia, and does not augur well for the success of an experiment in a Government which contains such a large number of officers as the Customs, Post Office and Defence Services. The discipline of the service is governed by the Act and regulations. Minor offences may be dealt with by the Chief Officer by way of reprimand. More serious otieiices arc the subject of a charge before a Board of Inquiry which investigates the facts and reports. The officer may be represented by counsel, and the inquiry may be in public or private. Wlien the cliarge is proved, the case is according ^Statutory Regulations, No. 6 of 1909. 'Coustilution, sec. 44. 'The Constitution, 1903. *Act No. 2075. 194 THE COMMONWEALTH OF AUSTRALIA, to its nature the subject of fine or loss of leave imposed by the permanent head, reduction by the Commissioner, or dis- missal by the Governor-General. The Board of Inquiry consists of three persons of whom one is the elected repre- sentative of the Division of the service to which the officer belongs for that State in which he is serving. The statutory regulation of a service creates rights in public servants which have frequently been and are a source of embarrassment to the Government in its adminis- tration. The most important variation of the conmion law lies in the fact that public servants have a legal tenure, so that their services may not be dispensed with at will, and that, whether as matters of contract or otherwise the salaries appointed to them constitute money claims which can be pursued in the Courts. In the case of the defence forces, however, the Defence Act 1903^ expressly declares that no engagement or promotion of any person shall constitute a civil contract ; but a person may on ceasing to be a member of the forces recover by suit any moneys due to him under his engagement. Even in the civil service officers in excess of public requirements may be called on to retire^ ; but it may be taken that such a power must be exercised bond fide and not as a means of avoiding the steps to be taken before an officer can be dismissed for misconduct. For it is clear that no officer under the Public Service Act may be dismissed or punished except for cause (which includes incapacity — sec. 65), and after the observance of procedure prescribed by law. It remains to speak of the Public Service Commissioner, upon whom lies the burden of administering the Act and upon whose integrity, judgment, and courage depends, in the main, the reconciliation of the various aims and interests wdiich meet in the organization and working of the service. iSecs. 13 and 12. ■ ^Sec. 8. ORGANIZATION OF COMMONWEALTH ADMINISTRATION. 195 He is at once administrator, adviser, and critic, responsible not merely or mainly to his political chief, but also to Par- liament. For these reasons, security of tenure and of salary are granted.^ But so much depends on the efficient performance of his duties, and this again depends so much on the personal qualities of tlie officer, which can only be tested by experience, that his appointment is for a fixed term of seven years and not for life. He is required to pre- sent an annual report for submission to Parliament on tlie condition and efficiency of the service, on his own pro- ceedings and those of his Inspectors, with suggestions for " improving the method of the working of the Public Service and especially for ensuring efficiency and economy therein in any Department or Subdivision thereof."- In this report he is charged, like the Auditor-General, with the duty of calling attention to any breaches or evasions of the law which may have come under his notice. His duties in relation to appointments and promotions have been con- sidered. He has a staff of inspectors who enjoy the same tenure as himself, and throuii^h them he ascertains the nature, value, and quality of tlie work of all officers. B}^ this means he is able to classify the work and the officers, and to learn enough of the personal qualities of the individual servants to guide liini in dealing willi appointments and promotions. He is not, however, dependent solel}^ on his own staff; he may call on the Departments for reports and may hold inquiries. In relation to the classification of officers and the arrangement of work in the Department, the duty of the Commissioner is to present reconuuenda- tions and proposals to the Government; and upon these a special procedure is established. 'I'he Government may proceed to give effect to them, or may reject them. If tliey are rejected, the Commissioner proceeds to a reconsideration ^Secs. 5 and 6. -Sec. 11. 196 THE COMMONWEALTH OF AUSTRALIA. of the matter with a view to further recommendations or proposals, and a statement of the reasons for rejection must be laid before Parliament.^ Finally, although the Act does not require that the Regulations issued by the Governor- General for the government of the service shall be on the recommendation of the Commissioner or shall have his approval — for as general regulations they are more legisla- tive than are particular acts of administration, and therefore more peculiarly within the political sphere of the Executive which is immediately answerable to Parliament — they are, no doubt, within the general provision wdiich requires him to submit reports as to matters requiring to be dealt with by the Governor-General under the Act.^ ^Secs. 8 and 9. ^Sec. 5. [197] CHAPTER VI. THE JUDICATURE. Judicial power is an essential element in government and the administration of laws. It follows that a Federal Government wliich is to be capable of effectuating its powers must have its own judicature ; it nuist not be dependent solely upon the aid of authorities wliich are sub- ject to another control. Furtlier, in a composite government with its inevitable conflicts, there must be some jurisdiction capable of giving an uniform interpretation which shall be final and supreme. How these ends are to be secured forms one of tlie main problems to be solved by the framers of federal constitu- tions. In Canada, the Dominion Parliament has power to establish and has established at tlie head of tlie whole judicature, a Supreme Court with appellate jurisdiction in all matters, and has power to establish such Courts as it pleases for the better administration of the laws of Canada {British North America Act 1867, sec. 101), a power wliich has been exercised in tlic establishment of some special Courts. Further, though the distinction between a Pro- vincial Judicature and a Dominion Judicature is observed, and the Provinces constitute, organize, and maintain the Provincial Courts, the Dominion Government appoints, pays 198 THE COMMONWEALTH OF AUSTRALIA. and, if necessary, removes, the Judges of the Courts of the Provinces. Finally, it must be remembered that the Dominion control over Provincial legislation and the grant of exclusive power to Dominion and Province were devised with a view to minimising; occasions of conflict. In the United States, consistently with the principle of State autonomy, the States continued to organize their judiciary and to control and appoint their judicial officers. But the paramount objects of a due execution of the powers of government, and uniformity in the interpretation and operation of those powers and of the laws enacted in pur- suance of them, are secured b}^ the establishment of a national judiciary. To attain the ends for which it exists, this national judiciary ought, in the language of Story, to possess powers co-extensive with the legislative department, and must be so organized as to carry into complete effect all the purposes of its establishment.^ The Commonwealth Constitution follows the example of the United States, and, while preserving to the States their own judiciary, provides a national judiciary for enforcing and guarding the Commonwealth powers. But the national judiciary in the United States and the Commonwealth is not merely the auxiliary of the federal Legislature and Executive. The Constitution may be attacked from within as well as from without ; and it is the duty of the judiciary, within its own sphere of judicial power, to uphold and maintain the Constitution against all attack, as well from the Commonwealth Executive or Legis- lature as from the States Governments. The judicial power of the Commonwealth is the power to adjudicate as an organ of the Commonwealth, and under sec. 71 is vested in and can be exercised only (1) by a Federal Supreme Court called the High Court of Australia, ^Story, Constitution, sees. 1576-7. THE JUDICATURE. 199 (2) by such other Federal Courts as the Parliament creates, and (3) by such otlier Courts as it invests with federal jurisdiction (sec. 71). The content of the judicial power is measured out by the jurisdiction conferred or which Parlia- ment may confer upon the High Court, and consists of — (a) the general appellate jurisdiction of the High Court under sees. 73 and 74; {b) the jurisdiction over the specific matters enumerated in sees. 75 and 76. In the main, the distribution of the judicial power amongst the judicial organs of the Commonwealth is controlled by the Parliament under sees. 77, 78 and 79, and sec. 51 (xxxix.) of the Constitution. Sec. 80 limits the powers of tlie Par- liament by declaring that the trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed. If the offence was not com- mitted within any State, the trial is to be held at such place as the Parliament prescribes. The provisions of the Constitution relating to the judica- ture are supplemented, and the distribution of jurisdiction in tlie main effected, by the Judiciary Acts 1903-1907 and the HigJi Cornet Procedure Act 1903. But it must be remembered that tlie Hififli Court draws its existence from the Constitution itself, and cannot be abolished by any means short of an amendment of the Constitution, while it has a jurisdiction botli appellate and original granted immediately by the Constitution itself (sees. 73, 74', 75). The Judiciary Act^ declares the High Court to be a superior Court of record,'- willi (lie same power to punisli for contempts as is possessed by tin' Supreme Court of Judicature in England.'' Its principal seat is at the seat of 'Tlie (lutiiils of tlieso Acts are outside tlie scope of lliia work. They are fully dealt with in Quick and (i room's Judicial Poictr of (he Commomvcallh. "Judiciary Act 1903, sec. 4. =•860. 4. 200 THE COMMONWEALTH OF AUSTRALIA government/ and its process runs, and its judgments and orders have effect and may be executed, throughout the Commonwealth.^ The Appointment, Tenure and Emoluments of Justices, not of the High Court alone, but of all other Courts created by the Parliament, are defined by sec. 72. These Justices " shall be appointed by the Governor-General in Council " ; " shall not be removed except by the Governor-General in Council on an address from both Houses of the Parliament in the same Session praying for such removal on the ground of proved misbehaviour or incapacity " f and " shall receive such remuneration as the Parliament may fix, but the remuneration shall not be diminished during their continu- ance in office."^ By the Judiciary Act 1903, the Justices of the High Court are appointed by Commission (sec. 4), and every person so appointed must be or have been a practising barrister or solicitor of tlie High Court or of the Supreme Court of a State, of not less than five years standing (sec. 5). The salary of the Chief Justice is fixed at £3,500 a year, and the salaries of the other Justices at £3,000 (sec. 47), and are charged upon and payable out of the Consoli- dated Fund (sec. 48). The Constitution provides that the Court shall consist of a Chief Justice and such number of Justices, not less than two, as Parliament prescribes. The Judiciary Act 1903 fixed the minimum number of Justices allowed by the Constitution, but an Act of 1906 increased the number by two. The statutory provisions which in England secure the iSec. 24. 2Sec. 25. •"•For a question on the interpretation of this provision, see a note in the succeeding chapter. ^Assessment under an Income Tax Act is not a diminution of remunera- tion : Cooper V. Commissionei- of Income Tax, Qaeendand, 4- C.L. R. 1304, 1315-1317. THE JUDICATURE. 201 independence of the Judges of the superior Courts have been generally reproduced in the self-governing Colonies. It may, indeed, be no longer necessary that they should offer " a barrier to the despotism of the prince ; " but the political power which has passed from the throne is not less likely to magnify itself in the hands of a Parliamentary Executive or a legislative body. Against the abuse of sovereign power no legal protection is possible, and, the Imperial Parliament being supreme, the Judges in England necessarily^ hold office and emoluments at the will of Parlia- ment : the universal acknowledgment of the sovereignty of Parliament is sufficient to prevent those conflicts of authority which in the past have been the occasion of attacks upon the bench. In the Colonies, however. Legislatures are not supreme, and " encroachments and oppressions " against the law may not be unknown. In the earl}^ days of responsible govern- ment in Australia, there were some sharp conflicts between the popular chamber or the Parliamentary Executive, and the Courts, and even between Parliament and the Courts, in which it must be owned tliat it was not always the Judges who carried away the honours of war. There was a disposition on the part of some Judges, as there has been on the part of the military authorities, to regard themselves as standing outside the system of responsible government, and as entitled in their official relations to connnunicate with the Governor without the intervention of a Minister. There was in South Australia what Sir lloundell Palmer and Sir Robert Collier described as " an unfortunate dis- position manifested upon the Bench to favour technical objections against the validity of Acts of the Colonial Legislature." And this " unfortunate disposition " was made by the Government and the Legislature the excuse for the perpetuation of a Court of Appeals consisting prac- 202 THE COMMONWEALTH OF AUSTRALIA. ticall}' of the Executive Government, a tribunal the unfit- ness of which called for strono- remonstrance from tlie Secretary of State. In Victoria, during the " deadlocks " of 1805 and 1867, the Courts were called on to adjvidicate upon the measures taken by the Government, with the support of the Legislative Assembly, for carrying on the government of the Colony without an Appropriation Act ; and in two cases decided against the validity of the Govern- ment acts.^ It is not, therefore, an ideal arrangement which makes the Judges of the Supreme Courts removable on the address of the two Houses of Legislature. The power of removal upon such address in some Colonies belongs to " Her Majesty " ; in otliers, " to the Governor in Council." Where the power is exerciseable by Her Majesty, it is upon the advice of the Secretary of State, and it has been established that " in dismissing a judge in compliance with addresses from a local Legislature, and in conformity with that law, the Queen is not performing a mere ministerial act, but adopting a grave responsibility, which Her Majesty cannot be advised to incur without satisfactory evidence that the dismissal is proper."- Where, on the other hand, the power under the local law is in tlie Governor, he must act as in other matters upon the advice of his Ministry, and there is no legal security that the occasion is a j^roper one for dis- missal. It seems clear that in such a case, there is no power to appeal to the Queen in Council.-^ The provisions of the Commonwealth Constitution go beyond those contained in any English or Colonial Act or in tlie Constitution of the United States for protecting the 1(1865) Sieveiisoii v. J!eg., 2 W.W. & kB. (L.) 143 ; (1867) Alcock v. Fergie, 4 W.W. &aB. (L.)285. ==Case of Mr. Justice Boothby, Todd, 848. ■'Secus, if the removal is under the powers of 22 Geo. III. c. 75. THE JUPICATURE. 203 judiciary. As in the United States, the tenure and emohi- nients of Judges of all federal Courts are protected by the Constitution ; while the Constitution supplies a defect which lias been noticed in the American Constitution — it pre- scribes the minimum number of Justices in the High Court. The English and Colonial model gives no protection against Parliament ; the power to remove on an address of botli Houses is in addition to the power to remove for misbe- haviour. In the Commonwealth these independent powers are interwoven — the Executive may remove only upon an address, which is to be based on proof of the causes stated.^ Nevertheless, it is not less true of the Commonwealth than of the United States that the judicial department does not really have an independent existence with the legislative and executive departments. That there is no legal process for compelling the Governor-General in Council to proceed to the appointment of Judges is no more than may be said of other powers and duties, notably the summoning of the Parliament. But while there is the imperative necessity of obtaining money or authority to spend money, to secure the latter, there is not the same necessity for appointing Judges or preserving the existence of Commonwealth Courts. The Ministry of the day and the two Houses of the Parliament would be practicall}' the sole judges of what constituted misbehaviour or incapacity, and when or how such misbe- haviour or incapacity was "proved"; their action would not be subject to review in any Court of law, except perhaps in a case where the procedure was flagrantly unjust. Though a Judge may not be removed except as provided, the Legislature mav abolish Courts otlier than the Wish Court, and there is nothing to protect the Judges from loss 'This stands as in the first edition. But tlie Commonwealth Constitution served as n model for the Transvaal (190G) and the Orange River Colony (1907) (see Keith, AV.«;jo»/sjW« Gorrrumtnt, p. '27o), and the Draft South African Constitution 1909, clause 101. 204 THE COMMONWEALTH OF AUSTRALIA. of office upon such an event, and nothing to secure them compensation ; the legal consequences of such an abolition have been discussed in the United States on the action of Jefferson in 1802.^ The Constitutional provision in relation to judicial .salaries applies in favour of the officer rather than the office, and the provision for future Judges is- entirely within the discretion of the Executive and the Parliament. The decision of the Judicial Committee in Buckley v. Edwards^ throws light upon the constitutional provisions as to the apj)ointment and tenure of Judges. An Imperial Act (15 & 16 Vict. c. 72) appropriated a sum of money for the salary of a Chief Justice and a puisne Judge in New Zealand, and gave power to the General Assembly of New Zealand to alter these appropriations by any Act or Acts, provided that the salary of a Judge should not be diminished during his continuance in office. An Act of New Zealand — The Supreme Court Judges Act 1858 — enacted that the Supreme Court should consist of " a Chief Justice and such other Judges as His Excellency in the name and on behalf of Her Majesty shall from time to time appoint." Under this power the Government appointed an additional Judge for whom a salary had not been provided by Parliament. Parliament refused to appoint a salary, and proceedings were taken by quo warranto against the Judge. The Judicial Committee said : — " It is manifest that the limita- tion of the legislative power of the General Assembly was designed to secure the independence of the Judges. It was not to be in the power of the Colonial Parliament to afTect the salary of anj^ Judge to his prejudice during his continu- ance in office. But if the Executive could appoint a Judge without a salary, and he needed to come to Parliament every year for remuneration for his services, the proviso would be iStory, 1633. ^l.r. (1892) A.C, 387. THE JUDICATURE. 205 rendered practically ineffectual, and the end sought to be gciined would be defeated. It may well be doubted whether this proviso does not by implication declare that no Judge shall hereafter be appointed save with a salary provided by law to which he shall be entitled during his continuance in office, and his right to which could only be affected by that action of the New Zealand Legislature which is excluded by the Imperial Act." After such an intimation of opinion the Executive Government is practically bound to submit to Parliament a permanent appropriation of salary for a new judgeship before the office is filled, and will act rightly in refusing to make any judicial appointment without such permanent provision. This was the principle acted upon when the appointment of two additional Justices to the High Court was preceded by a Parliamentary provision of their salaries. [20GJ CHAPTER VII. FEDERAL JURISDICTION. The Government of the Commonwealth is in all its depart- ments primarily a government of limited and enumerated powers ; the general unenumerated powers belong to the States. In the case of tlie judicial department, the general appellate jurisdiction of the High Court is a notable excep- tion from the special character of federal powers. But in addition to this appellate jurisdiction of the High Court (to be considered in the next chapter), there is a federal juris- diction over certain matters specifically enumerated. As in interpreting an Act of the Commonwealth Parliament the first thing to be done is to ascertain that the subject of the Act is one conunitted to the Parliament, so in invoking the jurisdiction of the federal Courts it must be shown that the cause is within the enumerated matters. In the United States it is held that the federal judiciary has no common law jurisdiction,^ and it must always appear that a case in a federal Court is within its jurisdiction, the presumption is against it until it is shown.^ "'to" ''^ Ex parte Bollman, 4 Cranch. 75. ^Godfrey v. Terrij, 97 U.S. 171 ; Robertson v. Grease, 97 U.S. 646. FEDERAL JURISDICTION. 207 The subjects of federal jvirisdiction in the Constitution closely follow the subjects of tlie judicial power of the United States, though in many respects the political con- dition of tlie Australian Colonies and the character of their Courts was widely different from the state of tilings which in America led to the inclusion of certain subjects in the judicial power of tlie Central Government. In the great case of Ghisliolin v. The State of Georgia} Mr. Justice Iredell remarked, in terms which have had the approval of Story, that " the judicial power of the United States is of a peculiar kind. It is, indeed, commensurate with the ordinary legislative and executive powers of the general government (i.e., the Federal Government) and the powers which concern treaties. But it also goes further. "When certain parties are concerned, although the subject in con- troversy does not relate to any special objects of authority in the general government wherein the separate sovereign- ties of the several States are blended in one common mass of supremacy, yet the general government has a judicial authority in regard to such subjects of controversy ; and the Legislature of the United States may pass all laws neces- sary to give such judicial authority its proper effect." The principles underlying these subjects are stated b}' Kent'-: — " All the enumerated ca.ses of federal cognizance are those which touch the safety, peace, and sovereignt}^ of the nation, or which presume that State attachments, State prejudices. State jealousies, and State interests miglit some- times obstruct or control the regular administration of justice." The subjects of federal jurisdiction are the nine classes of matters enumerated in sees. 75 and 76 of the Constitution.^ M1793)2 Dallas 419. -Kent's Commentaries (Holmes' edition, vol. i., p. 320). ■'' Per Griffith G.J. , Baxter v. Commissioner of Taxation, 4 C. T.. R. , p. Ill :>. 208 THE COMMONWEALTH OF AUSTRALIA. Sec. 75 — i. Arising under any treaty : ii. Affecting consuls or other representatives of other countries : iii. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party : iv. Between States, or between residents of different States, or between a State and a resident of another State : V. In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth : Sec. 76— i. Arising under this Constitution, or involving its interpretation : ii. Arising under any laws made by The Parliament : iii. Of admiralty and maritime jurisdiction : iv. Relating to the same subject matter claimed under the laws of different States. In sees. 75 and 76 the matter of jurisdiction alone is dealt with, the existence of legal rights is assumed, ard the sections do no more than indicate that the rights may be enforced in a certain tribunal or class of tribunals. The term " matter " which governs the enumeration of subjects is in itself so indefinite that its meaning must be gathered almost wholly from its particular use. In the Constitution it is used in relation to legislative, executive, and judicial power. It is well established by usage as a comprehensive term for describing every kind of proceedings competently brought before and litigated in a Court of law.^ In relation to judicial power, it excludes political disputes not arising out of legal right ; such disputes " do not present a case 1" Cause or matter" : Judicature Act 1873, sec. 100. FEDERAL JURISDICTION. 209 appropriate for the exercise of judicial power," and " it is only where the rights of persons or property are involved, and where such rights can be presented under some judicial form of proceedings, that Courts of justice can interpose relief."^ Even the reference to the Judicial Committee of " any such other matters whatsoever as His Majesty shall think tit " (3 & 4 AVill. IV. c. 41, sec. 4), is in practice limited to such matters as are fit for judicial determination, and in which the opinion may be followed by effective action by the Crown, a limitation which is the more significant Vvdien we remember that the Judicial Committee has many of the marks of the Council rather than of the Court.- In respect to the exercise of jurisdiction in these matters, sec. 75 declares that in the matters there enumerated the High Court sliall have original jurisdiction, and of this of course the Parliament cannot deprive it. The matters con- tained in sec. 76 are matters over which jurisdiction may be committed to the High Court by the Parliament, and sec. 77 defines tlie power of the Parliament with respect to the further distribution of judicial power over the subjects of sees. 75 and 70. Sec. 77 declares that the Parliament may make laws — i. " Defining the jurisdiction of any federal Court other than the Higli Court." The jurisdiction of the High Court is defined by tlie Constitution itself. It must be noted in dealing witli the American autliorities tliat there are marked differences between the American and the Australian Constitutions in the distribution of judicial power. Apart from tlie fact that the United States Constitution does not set up a general appellate power in the Supreme Court, the jurisdiction of ^Cherokee. Xatioii v. State of Geonjia, 5 Petera 1 ; Slate of Georgia v. Stanton, 6 Wallace 50. ^^See Toild, 305-6, 843. o 210 THE COMMONWEALTH OF AUSTRALIA. the Supreme Court in the limited class of cases which belong to the federal jurisdiction is in certain cases declared to be original, in others appellate merely. These provisions are peremptory, and cannot be varied by Congress. Thus, Congress cannot add to the original jurisdiction any matter which by the Constitution is committed to the appellate, and, similarly, where a matter is in the original jurisdiction of the Supreme Court, appellate jurisdiction cannot be exercised over it.^ But in the Commonwealth Constitution the High Court has by sec. 73 (ii.) jurisdiction, subject to such exceptions and regulations as the Parliament prescribes, to hear appeals fi^om all judgments of any federal Court or Court exercising federal jurisdiction ; while by sees. 75 and 76 the High Court either has or may have original jurisdic- tion of all the matters of federal jurisdiction. Thus the High Court, in addition to its original jurisdiction over the specified matters, has an appellate jurisdiction over them when determined in other Courts. The power to define the jurisdiction of other federal Courts is a power to commit to those Courts either appellate or original jurisdiction in the matters referred to them.^ Tlie only federal Court which the Parliament has estab- lished is the Commonwealth Court of Conciliation and Arbitration, whose jurisdiction is defined by the Conciliation and Arbitration Act 1904. ii. " Defining the extent to which the jurisdiction of any federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States." The mere grant of jurisdiction to a tribunal is not incon- sistent with the existence of the same jurisdiction else- where. Therefore, the fact that the Constitution confers 1 Marhury v. Maduon, 1 Cranch. 137 ; Osborn v. Bank of United States, 9 Wheaton 738, at p. 820. ^Ah Yick V. Lehmert, (1905) 2 C.L.R., at p. 604. FEDERAL JURISDICTION. 211 jurisdiction in certain cases on the High Court does not prevent the Parliament from granting the Hke jurisdiction to other federal Courts, and the establishment of other federal Courts with power of adjudication in any class of cases, would not prevent the States Courts from taking cognizance of the same class of case, if otherwise such juris- diction belonged to them. The sub- section now under consideration enables the Parliament to declare that the jurisdiction of any federal Court shall be exclusive of the jurisdiction of the State Court. In the case where the jurisdiction of the State Court arises under State law — which is presumably wliat is meant by the jurisdiction which "belongs to" it^ — this is clear enough; so long as the prohibition is in force, tlie State Court is excluded from exercisincr the iurisdiction which it lias under State laws. It is, however, hardly appropriate to speak of excluding the jurisdiction which has been invested in the State Court by federal law, and the power which established such a jurisdiction could certainly take it away without special authorit}''. iii. " Investing any Court of a State with federal juris- diction." This, again, is a matter in wliicli the Commonwealth Constitution dirters from the American ; in the latter, there is no power in Congress to connnit to the State Courts an authority to adjudicate in tlie name and on the behalf of the National Government. It becomes necessary to consider what is the force and effect of this constitutional provision, since important differences of opinion have arisen as to its meaning. If the list of matters included in sees. 75 and 76 is looked at, it will be seen that many of them are matters over which ^Baxter v. Co77i7nissioiier of Taxation, 4 C.L.ll. , })er Isaacs J., at p. 1142. 212 THE COMMONWEALTH OF AUSTRALIA. the State Courts liad undoubtedly jurisdiction by virtue of State laws. Thus, there was nothino- in cases " arisinof under any treaty " {e.g., Extradition Treaties) or " affecting consuls or other representatives of other countries," or " between residents in different States," or " of admiralty or maritime jurisdiction," to prevent them from exercising their ordinary jurisdiction ; and neither the establishment of the Common- wealth nor the existence of the High Court took away or affected the nature of that jurisdiction. Further, the Con- stitution Act, sec. v., declaring that the Constitution and all laws made by the Parliament thereunder, shall be binding on the Courts, Judges and people of every State notwith- standing anything in the laws of any State, makes it part of the duty of the State Courts, as such, to give effect both to the Constitution and federal laws whenever they may be appro- priate to the determination of a matter competently before the Court. The States Courts, therefore, in the exercise of their State jurisdiction, may perfectly well have before them matters " arising under the Constitution or involving its interpretation," or " arising under any laws made by the Parliament."^ In such a case the jurisdiction of the State Court — its authority to adjudicate — springs from the State law, and the Constitution or the Commonwealth Statute merely determines the law to be applied in the adjudication. But there are other cases in which the State Courts have not and could not have power to adjudicate under the State law. Thus, the indej^endence of the Commonwealth involves the prohibition of State Courts from entertaining any suit against it ; a similar reason excludes jurisdiction over suits against other States. Nor lias the State Court as such power to issue manduTnus to afederal officer to compel him to perform a federal duty,^ or to issue habeas corpus to a ^Clajlin V. Houseman, 93 U.S. J. 30. "McClun'j V. Silliman, 6 Wheaton 59S ; Ex parte Goldrmg, (1903) 3 S.R. (N.S.W.) 260. FEDERAL JURISDICTION. 213 federal officer.^ Moreover, it is accepted in the United States that where a federal Statute creates an offence, the State Courts have no jurisdiction to entertain a prosecution for it ; it can be punished only in a federal Court. '^ Now, in this second class of case, the Commonwealth Parliament can supplement the defect of State authority and give the State Courts the power to adjudicate. That is, under sec. 77 (iii.) of the Constitution, it may invest the State Courts with federal jurisdiction. In the opinion of Hodges J., this represents the full extent of the power given by the sub-section ; it enables the State Courts to adjudicate in matters in which they had not, and could not have, any jurisdiction under State law, and has no application to matters which are within the cognizance of the State Courts inde- pendently of federal legislation.'^ According to this view, the errant of iurisdiction bv tlie Federal Parliament to the state Courts in matters wherein those Courts already have jurisdiction by State law, is a mere nullity; tlicy have already a power to adjudicate, and that power is not altered by the affectation of another grant oL" authority from a different source. On this ground, sec. 39 of the Judiciary Act 1903, so far as it deals with matters cognizable by the State Courts under State law, and affects to convert tlie authority of the State Courts into federal jurisdiction, would be ultra vires. The view wliich has been adopted by the Higli Court is that the power to invest the State Courts with federal juris- diction cannot be so limited, and insists that we must regard not merely the matter over wliich jurisdiction is exercised, but also the source from which it is derived. A State Court exercises federal jurisdiction when by virtue of 1 Tarble's Case, 13 Wallace 397. -United States v. Lathrop, 17 Johusou 4. ■■'Outtrim's Case, (1905) V.L.R. 463. 214 THE COMMONWEALTH OF AUSTRALIA. an Act of the Comnioiiwealth Parliament it entertains a suit against the Commonwealth; but it equally exercises federal jurisdiction in a suit by the Victorian Commissioner of Income Tax for the recovery of taxes, where the defen- dant claims some immunity arising- under the Constitution, if the Commonwealth Parliament has declared that its jurisdiction in such cases shall be federal jurisdiction. Under State law, it had power to adjudicate as an organ of State government ; under federal law it has authority to adjudicate as an organ of Commonwealth government.^ In respect to subject-matter, the power to adjudicate lies where it did ; but the source from which it springs is different, and this source being the Commonw^ealth law, it is federal jurisdiction. The power to invest the State Courts with federal juris- diction is then co-extensive with the power to establish federal Courts ;"' and this jurisdiction may be original or appellate at the discretion of the Parliament.^ It remains to consider the principal features of the dis- tribution of federal jurisdiction by the Parliament in the Judiciary Act 1903. First, of the Hio-h Court. Sec. 30 declares that in addition to the matters in which original jurisdiction is committed by the Constitution to the High Court, the High Court shall have original jurisdiction in all matters arising under the Constitution or involving its interpretation.* Sec. 38 ^Baxter v. Commissioner of Taxation, (1907) -1 C.L.R. , at pp. 1136 (Griffith C.J.), 1142-,3 (Isaacs J.). -Ah Tick V. Lehmert, (1905) 2 C.L.Il., at p. 604. 3S.C. *No attempt is made here to describe exhaustively the cases in which the High Court has original jurisdiction in proceedings under Acts of the Com- monwealth Parliament dealing with the several subjects of legislative power, e.g., the Atistralian Industries Preservation Act 1906. A list of Acts con- ferring such jurisdiction, as well as of those investing State Courts with federal jurisdiction, will be found in the annual volumes of the Common- wealth Statutes in the "Table of Commonwealth Legislation in Relation to the Several Provisions of The Constitution." FEDERAL JURISDICTION. 215 enumerates five classes of matters in wliich the jurisdiction of the Hii^h Court shall be exclusive, viz. (a) matters arising directly under any treaty ; (h) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State ; (c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on belialf of a State; (d) suits by a State, or any person suing on behalf of a State, against the Commonwealth, or any person being sued on behalf of the Commonwealth ; (e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal Court. To these cases an addition is made by sec. 2 of the Judiciary Act 1907,^ pro- viding that the jurisdiction of the High Court in cases under sec. 74 of the Constitution shall be exclusive of the jurisdiction of the Supreme Courts (original or appel- late) of the States, not, it will be observed, of other State Courts. In the exercise of its original jurisdiction, the Higli Court may make and pronounce all such judgments as are neces- sary for doing complete justice in any matter before it (sec. 31); and sec. 24 (7) of the English Judicature Act 1873, enabling the Court to give all manner of relief, legal or equit- able, is adapted to the High Court (sec. 32). The High Court may make orders or direct the issue of writs — (a) connnand- ing the performance by any Court invested with federal jurisdiction of an}'- duty relating to the exercise of its federal jurisdiction ; (6) requiring any Court to abstain from tlie exercise of any federal jurisdiction which it does not possess ; (c) commanding the performance of any duty by any person liolding office under the Connnonwealth ; {d) removing from office any person wu'ongfully claiming to liold any office ^Judiciary Act 190:M907, sec. 38a. 216 THE COMMONWEALTH OF AUSTRALIA. under the Commonwealth ; (e) of mandamus ; or (/) of habeas corpus. The only case in which the Parliament has created a " federal Court " appears to be the Court of Conciliation and Arbitration, established in 1904,^ to exercise the special and extraordinary powers in connection with conciliation and 1 Act No. 13 of 1904. Jumhunna Coal Mine v. Victorian Coal Miners' Asso- ciation, (1908) 6 C.L.R. 309, 323-4. This Act is furtlier considered in con- nection witii the Subjects of the Legislative Power of the Parliament, but a word must be added in regard to the constitution and organization of tiie Court. Sec. 72 of tlie Constitution governs the appointment and removal of the Justices of all federal Courts. It appears to require that such Courts shall be held only by Justices wlio in their capacity as Justices of that Court are protected by the safeguards of the section, and to exclude the appoint- ment of any Justice to a Court for a term of years, though the person so appointed is a Justice of another Court on the terms and conditions of sec. 72. This suggests a curious question on the interpretation of sec. 72. The desire of the fratners of the Constitution was undoubtedly to give a life tenure to federal Justices, and to make the office more and not less assailable than that of Judges in the superior Courts in England and in Australia. To this end they departed from the customary form of declaring that Judges shall hold office during good behaviour, and, using the emphatic words of nega- tion, declared that they should not be removed except in the cases pre- scribed in sec. 72 (2). The result is that there is no athrmative declaration of tenure, and while a Justice who is appointed without words defining his tenure has in fact a life appointment because he can only be ren\oved in the cases prescribed, there is room for argument that a Justice might be appointed for a term of years, at the end of which his tenure would expire without any removal at all, just as it does by death. But the case of BucJdey v. Edwards, (1892) A.C. 387, shows that constitutional usage has a great power of controlling the interpretation of tins class of provision, and the power to appoint would probably be construed as a power to appoint simpliciter unaccompanied by any power to declare a tenure, in which case the Justice would, of course, hold office until deatli or removal by virtue of sec. 72 (ii.). Another question arises in regard to the Court of Arbitration. The President may appoint any Justice of the High Court or Judge of the Supreme Court of a State to be his deputy to exercise such of his powers as he thinks fit to assign, the appointment not to affect the exercise of any person or function by the President itself. If the powers to be deputed are merely those which belong to the President as distin- guished irom those of the Court consisting of the President, the provision may be good ; but the President could hardly be vested with the power to authorize persons to exercise generally the functions of the Court in face of the constitutional provision which requires that Justices of federal Courts shall be appointed by the Governor-General, &c. FEDERAL JURISDICTION. 217 arbitration in industrial disputes. The Court consists of a President, who is to be appointed from among the Justices of the High Court for a term of seven years. " The Court of Disputed Returns," establislied by the ConiTnomuealth Electoral Acts 1902-5, appears to be less a separate federal Court than the High Court exercising a special jurisdiction (sec. 193 (1) and (4) ). The power to invest the State Courts with federal juris- diction has been exercised almost to its fullest extent by sec. 39 of the Judicmry Act. Briefly, the scheme of that section is to embrace the whole of the matters of federal jurisdiction which it is not intended to give to the High Court exclusively, and to declare, first, that the State Courts shall according to their nature and degree have jurisdiction in all of them, whether they are matters of which the Court would liave jurisdiction under the State law or not; secondly, that no jurisdiction shall be exercised by the State Courts in any of such matters, except as federal jurisdiction. To secure the latter object in cases which already belonged to the jurisdiction of the State Courts by State law, it ai)pears to have been thought advisable to declare formally that the jurisdiction of the High Court in all matters should be exclusive of the jurisdiction of the several Courts of the States, thereby precluding the State Courts from exercising jurisdiction in any of the nine matters mentioned in sees. 75 and 76 of the Constitution in whicli the High Court had original jurisdiction. The exclusion of the State jurisdiction in tliese cases is followed by a grant of federal jurisdiction in these terms : '' The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdic- tion can be conferred upon it, except as provided in the last 218 THE COMMONWEALTH OF AUSTRALIA. preceding section" {i.e., sec. 38, conferring exclusive juris- diction in certain cases on the High Court). It is upon this section that the controversy ah'eady noted as to the power to invest with federal jurisdiction has arisen. It is enough to say here that the High Court has sustained the grant in respect to all matters, whether there was any jurisdiction belono-ino; to the State Courts under their own law or not.^ The High Court has also held that the grant applies equally to the State Courts in their appellate as in their original jurisdiction.- The grant of federal jurisdiction under sec. 89 is subject to four conditions and restrictions. One of these defines the constitution of a State Court of summary jurisdiction when exercising federal jurisdiction. Another declares that, whenever an appeal lies from a Court or Judge of a State to the Supreme Court, an appeal may be brought to the High Court ; and a third, that an appeal may by special leave be brought to the High Court from any Court or Judge of a State notwithstanding that the State law prohibits an appeal. The fourth condition is that " every decision of the Supreme Court of a State or any other Court of a State from which at the establishment of the Commonwealth an appeal lay to tlie Queen in Council, shall be final and conclusive, except so far as an appeal may be brought to the Higli Court." The constitutional question whicli arises under this provision will be considered under the appellate jurisdiction, and need not liere be further discussed. The High Court has held that it does not purport to take away any right existing under an Order in Council, and that it leaves the appeal by special leave unaffected.^ '^ Baxter Y. Commissioner'^ of Taxation, (1907)4 C.L.R. 1087 ; see especially pages 1137-1)38, and 1141-1143. -Ah Yick V. Lehmert, (1905) 2 C.L.R. 593. ^Baxter v. Commissioneys of Taxation, 4 C.L.R. 1087. FEDERAL JURISDICTION. 219 For the special matter of a cause or part of a cause arising under the Constitution or involving its interpretation and which is pending an appeal in a State Court, sec. 40 provides that it may be removed into the Higli Court by order made on the application of a party or of the Attorney-General of the Commonwealth or of a State. [220] CHAPTER VIII. THE APPELLATE JURISDICTION : THE KING IN COUNCIL AND THE HIGH COURT OF AUSTRALIA. The vexation of appeals to the Privy Council is an old Colonial grievance, of which traces may be found even in the seventeenth century ; and in the early history of the federal movement in Australia, there were few matters which were more frequently referred to as demonstrating the need for, union than the hardships and inconvenience of " a distant and expensive system of appeal." The delay and the cost of a proceeding in the Privy Council and the occasional weakness of the Judicial Committee amounted to a real grievance ; submission to an external Court was a sentimental grievance which counted for much in countries proud of their new won powers of self-government. In time, however, these influences lessened ; and, while the estab- lishment of a general appellate Court as part of any scheme of federation was assumed as inevitable, the desire for such a change in the judicial arrangements can hardly be re- garded as an effective political force in the federal move- ment. The princijjal reason for the diminution of interest in the question was, no doubt, that, though there were lawyers in plenty in political life, the driving force in THE APPELLATE JURISDICTION. 221 politics had shifted to classes wJiicli, while not indifferent to the efficient administration of justice, are little concerned with the supreme jurisdictions. Otlier ciuises were at work to modify opinion, as the improvement of communications by cable and steam. On the other hand, the enormous invest- ments of Encrlish money in the Colonies, and the importance of supporting Australian credit at a time when several of the Colonies were still suffering- a recovery from financial dis- asters, made the commercial interests favourable to a tribunal submission to which might be regarded in Eno-land as a pledge of good faitli. Some importance was attached among the same classes, as well as in tlic legal profession, to the maintenance of uniformity of law throughout the Empire. Finally, the discussion was caught in the tide of loyalty whicli swept over the country during the Boer war, and a strong 23ublic opinion declared against any severance of Imperial ties. The result, therefore, was conipromise. The long expected general Court of appeal was established ; and the appeal to the Privy Council was retained under conditions which, whatever their demerits, respect local and Imjjerial sentiment, and in the main preserve the royal prerogative without creating the evil of a multiplicity of appeals. The scheme is contained in sec. 73 (Appellate Jurisdiction of the High Court) and sec. 74 (Appeals to the Queen in Council) of the Constitution. Sec. 73. The Higli Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences — (i.) Of any Justice or Justices exercising the original jurisdiction of the High Court ; (ii.) Of any other federal Court, or Court exercising federal jurisdiction ; or of the Supreme Court of any State, or of any other Court of any State from wliich at the 222 THE COMMONWEALTH OF AUSTRALIA. establishment of the Commonwealth an appeal lies to the Queen in Council ; (iii.) Of the Inter-State Commission, but as to questions of law only ; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parlia- ment shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which, at the establishment of the Com- monwealth, an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court. Sec. 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any ques- tion howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Con- stitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and there- upon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise in virtue of Her Royal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed THE APPELLATE JURISDICTION. 223 laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure (vide sec. 60). On these sections the following observations may be made : — 1. Sec. 73 shows the High Court in its two capacities — first, the Supreme Court of federal jurisdiction in the Commonwealth; secondly, the general Court of appeal in the Commonwealth. In the first capacity, it may be com- pared with tlie Supreme Court of the United States ; in the second, with the Supreme Court of Canada. 2. Sec. 73 not merely confers jurisdiction on the High Court where there is a right of appeal, but grants a right of appeal to the litigant,^ for the jurisdiction is to hear appeals from all judgments, &c. 3. The Commonwealth Parliament may make exceptions and regulations as to the right of appeal from State Courts to the High Court, subject to the limitation that it may not prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council (sec. 73). The State Parliament has no power to define the conditions and restrictions applicable to appeals from its Courts to the High Court.' The Parliament may not create any additional appellate jurisdiction in the Higli Court.'' " It is important to notice that the powers of Parliament, so far as regards the appel- late jurisdiction of the Court, are limited to prescribing exceptions from the otherwise unrestricted jurisdiction con- ferred by the Constitution, to prescribing regulations as to the exercise of the right of appeal, i.e., as to time, securit}', '^Hannah v. Dalgarno, 1 C.L.R. 1 ; Parkin v. Jame.^, 2 C.L. K. at pp. 329-330 ; Ah Tick v. Lthmtrt, 2 C.L.R. 593. -Petei-swald v. Bartley, 1 C.L.R. at p. 499. '^Hannah v. Dalgaruo, 1 C.L.R. at p. 10, }>er Griffith C.J. 224 THE COMMONWEALTH OF AUSTRALIA. procedure, and similar matters, and to modifying the con- ditions and restrictions prescribed by the Orders in Council as to appeals from State Courts exercising State juris- diction."^ The power of the Parliament to establish excep- tions to the exercise of the appellate jurisdiction is controlled by the paragraph which secures an appeal to the High Court from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal would lie to the King in Council. This has the important consequence that the Commonwealth Parliament may not take away the power of the High Court to grant special leave to appeal from any judgment of the Supreme Court of a State, since every such judgment was a matter in which an appeal lay (either under the Orders in Council or by special leave) to the King in Council.- But, consistently with the decisions of the Privy Council,^^ the High Court has held that no appeal lies to it from a State Court acting, not in the ordinary administration of justice, but in the exercise of a special jurisdiction of a kind not necessarily or usually committed to Courts of justice, as the hearing of election petitions, whenever that jurisdiction has been com- mitted in such a way that judgments rendered under it are to be final and conclusive.'* The Judiciary Act 1903, Part V., proceeds to exercise the power of Parliament over the appellate jurisdiction, and sec. 35 of that Act {a) fixes the appealable amount in civil cases at £300, instead of the £500 established by the Orders in Council for appeals to the King in Council ; (6) extends the class of cases in which an appeal may be taken without "-Parkin v. Ja??ie.s, (1905) 2 C.L.R. 315, 333-335. Qiiane, where such Court is exercising federal jurisdiction — Hannah v. Dahjarno, 1 C.L.R. 1, 9-10. ■■Theberrj4 v. Lmidry, 2 A.C. 102. * Holmes v. Angioin, (1906) 4 C.L.R. 297. See also Parkin v. James, 2 C.L.R. at p. 333. THE APPELLATE JURISDICTION. 225 special leave beyond those embraced in the Orders in Coun- cil ; and (c) provides tliat in all other cases an appeal may be brought by special leave. These provisions are applic- able not merely to judgments of the Supreme Court of a State but to the judgments of every Court of a State from which at the establishment of the Commonwealth an appeal lay to the King in Council, and apply whether the Court is acting in a federal jurisdiction or otherwise. The section emphatically declares that the appellate jurisdiction of the High Court shall apply to the cases therein dealt witli " and to no others." The High Court has intimated an opinion that the regulations contained in sec. 35 are intended to be exhaustive and that (apart from the Constitution) the right of appeal must be considered with reference to that section alone.^ 4. Early in the history of the High Court, a decision was given which has had grave consequences in respect to the working of tlic wliolc judicial system of the Common- wealth. The State Legislatures, in providing for the exer- cise of the jurisdiction of their Supreme Courts, have sanctioned the exercise of that jurisdiction by single Judges of the Court, and have declared that the judgment of a single Judge, so exercising the jurisdiction of the Supreme Court, shall be a judgment of the Court itself. The ques- tion arose whether such judgments were judgments of the Supreme Court of a State within the meaning of the Con- stitution, or whether that term was merely descriptive of quality or status so as to applj^ onl}' to tlie Court of ulti- mate appeal in tlie State, by whatever name known. It was argued that the collocation of " Supreme Court " witli other Courts from wliich "an appeal lay to the King in Council" showed an intention to describe the uUiiuate Court of appeal in the Colon}^ since the Orders in Council ^Parkin v. James, 2 C.L. K., at p. 3.{7. 226 THE COMMONWEALTH OF AUSTRALIA. limited appeals without leave to the judgments of such Courts. Further it was urged tliat if the Constitution, in using the term " Supreme Court of a State " meant only a particular tribunal so known and called by the law of the State, the State law, by abolishing the tribunal of that name and re-constitutinoj it under another name, might defeat the appellate jurisdiction of the High Court altogether. In Parkin v. James} the Higli Court held it had jurisdiction to hear aj)peals from single Judges exercising the jurisdic- tion and pronouncing judgments in the name of the Supreme Court of the State. The designation "Supreme Court" was one common to each of the States, and it was impossible to doubt that it was intended as a specific designation and not merely as descriptive of status ; it might be that the term would also include Courts established under another name in substitution for them but with similar functions.'^ As to tlie other arguments, the Court did not consider that the " Supreme Court " was qualified by the reference to other Courts of a State from which an appeal lay to the Crown in Council; but the latter expression could not be restricted to Courts from which an appeal la}' " as of course " ; it must extend to appeals by special leave, which were in the strictest sense appeals as of right. The immediate effect of the decision, which has been accepted hy the Privy Council,^ was to make the High Court a first and ordinary Court of appeal from the Supreme Courts of the States exercising their original jurisdiction. The litigant thereby reaches the High Court without the intervention of the Full Court in the States ; and as no Order in Council defining^ the conditions on which appeals may be had from the High Court to the King in ^■2C.L.R. 315. = 8.C., at p. 330. ""Blakt V. Bayne, 1908 A.C. 371. THE APPELLATE JURISDICTION. 227 Council has been made, the further appeal to the Privy Council cannot be had without the special leave of that body. In the result, the High Court, instead of being, as was contem- plated, the substitute for tlio Privy Council after the State tribunals were exhausted, has become the substitute for the Full Courts of the States. The effect has been to fill the cause lists of the High Court at the expense of the Full Courts of the States. When the establishment of the High Court was under consideration, it was a counnon belief that, iudfimT by the small number of cases that went from Australia to the Privy Council and the supposed infrequenc}^ of matters within the limits of the orighial jurisdiction, the Justices of the High Court would have a position of dignified leisure. But the combined effect of Parkin v. James and the Commomvealtk Conciliation and Arbitration Act has already caused some congestion in the business of a Court wliicli now consists of five Judges instead of tlie three assigned to it upon its establishment.^ 5. An appeal lies to the High Court from the judgments, not merely of the Supreme Court of a State, but also from any other Court of a State from wliich at the establishment of the Commonwealth an appeal lies to the Crown in Council (sec. 78 (ii.) ). Tliis provision recalls the old jurisdiction formerly exercised in some of the Colonies by the Governor in Council as a Court of Error ami Appeals 'The High Court follows the well established practice whereby the verdict of a jury cannot be impeached i)y way of appeal against the judg- ment founded in it ; the proper course is to apply for a new trial to tiie State Court {Mu^rjrove v. MacdonaUl, (IflOo) 3 C.L.R. 132). Where, Iiow- ever, the tindings of a jury in a special verdict are accei)led, and tlie judg- ment upon those findings is the thing challenged, an appeal does lie (Brisbane Shipwrifjhls' Union v. Hefj(/ie, (1906) 3 C.L.R. 686). When a State Court is acting in its federal jurisdiction, the appeal to the Hiijli Court is governed by sec. 39 of the Judiciary Act {Uaunie v. Commou- weaUh, (1906) 4 C.L.ll. 97). 228 THE COMMONWEALTH OF AUSTRALIA. from the Supreme Court.^ Colonial Courts of Admiralty under 53 & 54 Vict. c. 27 are not identical with the Supreme Courts of the Colonies where the Act is in force ; and it is probable that the Vice-Admiralty Courts in New South Wales and Victoria, which have noi yet been brought under the Act, are not included under " Courts of any State." In Victoria, the Governor in Council has a statutory juris- diction by way of appeal from judgments of Courts of marine inquiry. Although the Queen in Council is the ordinary Court of final appeal in Colonial cases, so that the terras used in sec. 73 are those which naturally suggest themselves as embracing the whole range of appellate juris- diction, there is at any rate one case in which the appeal from a colonial Court lies to another English Court— appeals from Colonial Courts of Inquiry under 45 & 46 Vict. c. 76, sec. 6, lie to the Probate, Divorce and Admiralty Division of the High Court of Justice. There is an ambiguity in the words " an appeal lies to the Queen in Council," as already pointed out in connection with Parkin v. James, and the High Court has held in that case that they cannot be limited so as to designate only Courts from which an appeal lay without special leave. But as the Crown can undoubtedly entertain an appeal from any Court whatever in its Dominions,^ it is not clear what is the extent of the limitation which it was undoubtedly sought to estab- lish on the right of appeal to the High Court by the designa- tion in question. The High Court called attention to the ^ A'.iy. in New South Wales under the Letters Patent of April 2ncl, 1787, 4 Geo. IV. c. S;6, ami The. Charter of J untice 1823. In South Australia, such a Court of Appeals was established by a local Act, 7 \Vill. IV. No. 5, and after an acrimonious conflict between the Supreme Court and the Cabinet, was confirmed and strengthened by 24 & 25 Vict. No. 5. The South Aus- tralian Court still exists but is rarely lesorted to ; and under tlie Order in Council of 1860 an appeal lies directly from the Siipreme Court to the Queen in Council. Cf. Parkin v. James, 2 C.L.R. at p. 330. -See Parkin v. James, 2 C.L.R. at pp. 331-332. THE APPELLATE JURISDICTION. 229 difficulty in Kamarooka Gold Mining Co. v. Kerr} and observed tliat Parkin v. James did not decide that an appeal lay to the High Court from all Courts from which an appeal lay to the Privy Council by special leave only, 6, The mere grant of jurisdiction to the High Court to entertain appeals from the State Courts does not derogate from the right of the litigant to appeal from the State Court to the Kinof in Council, or of the King in Council to hear the appeal, whether under the Orders in Council applicable to appeals from the State or by special leave.- The practice now well established in regard to judgments of the Supreme Courts of the Provinces in Canada is reproduced in the Com- monwealth. In Canada the party aggrieved by a decision of the Supreme Court of a Province may elect to prosecute his appeal before either the King in Council or the Supreme Court of Canada. If both parties are aggrieved, there is nothing to prevent one party appealing to the Crown in Council, the other to the Supreme Court of Canada ; and in one case, at any rate, it appears that this actually occurred.^ Many inconveniences may be foreseen from this alternative appeal, though so far as concerns the uniformity and certainty of the law there seems no reason to doubt that the decisions of the Privy Council would be regarded as binding, since it has the ultimate power of reversing either the Supreme Court of Canada or the High Court of Australia. Reference will V)c made to the cases of Baxter v. Commissioners of Taxation* and Flint v. W ebb f' in which the High Court refused to follo\v the decision of the Privy Council in Webb v. (hUtrim,^ ix case taken on appeal direct '(1908) 6C.L.R. 255. - Webb V. Outtrim, (1907) A.C. 81. ■'Todd, Parliamentary Qovernmtnl in the Colonits, pp. 309-310. UC.L.R. 10S7. HCKR. 1178. 0(1907) A.C. 81. 230 THE COMMONWEALTH OF AUSTRALIA. from the Supreme Court of Victoria, and determining the very matter in dispute. But the action of the High Court was based on the ground that sec. 74 of the Constitution expressly constituted the Higli Court the final arbiter of the law in the class of matter to which the case belonofed, except so far as the High Court should permit the matter to be dealt with by the King in Council. The right of appeal from the State Court to the King in Council is governed by Charters, Orders in Council under statutory power, and (in some cases) local Statutes. These may be recalled or varied by the several authorities from which they issue. The Commonwealth Parliament cannot abridge or extinguish a right arising from any of these sources.^ But it is doubtful whether any of them apply to the judgments of State Courts in any matter in which those Courts are invested with federal jurisdiction by the Parlia- ment of the Commonwealth.^ Sec. 39 of the Judiciary Act, investing the Courts of the States with federal jurisdiction, declares that " every decision of the Supreme Court of a State or of any other Court of a State from which at the establishment of tlie Commonwealth an appeal lay to the King in Council, shall be final and conclusive except so far as an appeal may be brought to the High Court." In Webh V. Outtrion^ Hodges J. (in the Supreme Court of Victoria) considered that this was an attempt to take awfiy a right of appeal given by tlie Order in Council, and was tiltrd vires ; but as he also held that the case was one not of federal, but of State jurisdiction, his decision hardly determines the question now under consideration. The same applies to the decision of the Privy Council'* approving the decision of 1 Wehh V. Outtrim, (1907) A.C. 81. -Hannah v. Dalyariw, 1 C.L. R. I. ='(1905) V.L.R. 463. *(1907) A.U. 81. THE APPELLATE JURISDICTION. 231 Hodg-es J. — it is not clear whether their Lordships regarded the case as one of federal or State jurisdiction. Probably, however, the judgment means that, whether the State Court was acting in the one jurisdiction or the other, the Common- wealth Parliament could not extinguish the right to appeal from the State Court to the King in Council, whether by special leave, or the Order in Council which (according to this view) extends to the federal jurisdiction of the Supreme Court of the State. In the view of the majorit}^ of the High Court, first, the grant of federal jurisdiction to the State Courts is equivalent to the establishment of a new Court, and the Order ni Council does not apply to the judg- ments of the State Courts in this novel jurisdiction;^ secondl}-, sec. 39 of the Judiciary Act, according to its true construc- tion, does not attempt to interfere with the power of the Crown to grant special leave to appeal from the State Court in its federal jurisdiction ; consequently, no question of the power of the Parlianient of the Commonwealth is raised by that section.- 7. The Orders in Council governing appeals to the King ill Council from the Supreme Courts of the States have made no provision for appeals in criminal cases, and these are always entertained by .special leave. Under sec. 73 the like restriction governed criminal appeals from the Supreme Courts of the States to the High Court ; and by the Judi- ciary Act, sec. 35 (1) {h), an appeal lies to the High Court in criminal matters only on special leave. 8. In those cases in which an appeal from a State Court to the High Court lies only witli the special leave of the latter, the High Court is guided by the practice of the Privy Council in granting special leave to appeal from the ^Hannah v. Dali/arno, 1 C.L. Iv. I, in. ^Baxter v. Coiiimissioners of Taxation, (1907) 4 C.L.K. at pp. 11.38-9, Higgins J., dissenting, ;it pp. ll(5'J-3. 232 THE COMMONWEALTH OF AUSTRALIA. Supreme Court of Canada/ as laid down in Prince v. Gag- non? In that case, appropriate cases were defined as those " "where the case is of gravity involving matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is other- wise of some public importance or of a very substantial character." 9. As no Order in Council has been issued defining the conditions of appeal from the High Court to the Privy Council, there is no appeal " as of course " or (to use the expression commonly applied in such a case) " as of right." But the declaration that the judgments of the High Court shall be " final and conclusive " would not impair the pre- rogative of the Crown to grant special leave to appeal, even if that prerogative were not specially preserved by the final clause of sec. 74. Whether a Colonial Legislature can, under its general power of legislation, affect the right of appeal by special leave to the Crown in Council, has been a moot point of constitutional law. Certainly no authority can be found in favour of the power,^ and reason and now, ^Hannah v. Dahjarno, 1 C.L.R. L See also Bac/chouse. v. Moderana, 1 C.L.R. 675; Lilliea-ap v. 77ie King, 2 C.L. K. 681; Johansai v. City Assurance Society, 2 C.L.R 186 ; hi re Coleman, 2 C.L.R. 834 ; Millard V. The King, 3 C.L.R. 8*27 ; Bataillard v. The King, 4 C.L.R. 1282 ; McGee V. The King, 4 C.L.R. 1458. -8 A.C. 103. See also Daily Telegraph Xtirxpaptr Co. v. McLaughlin, 1 C.L.R. 479. "In Cufhing v. Dupuy, (ISSO) 5 App. Cas. 409, which is sometimes cited as authority for the proposition that a Colonial Legislature cannot affect the prerogative to hear appeals as a matter of grace, no such proposition was affirmed and no opinion was expressed by the Judicial Committee on the subject ; all that was said was — " It is, in their I^ordships' view, un- necessary to consider what powers maj' be possessed by the Parliament of Canada to interfere with the Royal Prerogative, since the 28th section of the Insolvency Art does not profess to touch it, and they think, upon the general principle that the rights of the Crown can only be taken away by express words, that the power of the Queen to allow this appeal is not affected by that enactment." See also Peterswald v. Bartley, (1904) I C.L.R. at p. 499. THE APPELLATE JURLSDICTION. 233 perhaps, autliority^ is against it. It is important, therefore, to notice that the Parliament of the Commonwealth has by sec. 74 express power to make laws limiting the matters in which leave may be asked, Bills for this purpose, however, being required to be reserved by the Governor- General for the Royal Assent. 10. It follows that all appeals from the High Court to the King in Council are (with the exception of the limited class of cases mentioned in the first paragraph of sec. 74) by special leave of the King in Council. The principles which govern the reception of appeals from the Supreme Court of Canada are well established, and in the first case from the High Court, the Privy Council declared an intention of applying them to appeals from the High Court.^ Their Lordships recur to the observations of the Board in Prince V. Gagnon^ that they are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal " save where the case is of gravity involving matters of public interest or some important question of law, or afiect- ing property of considerable amount or where the case is otherwise of some public importance or of a very substan- tial character." At the same time their Lordships disclaim the intention of laying down any specific rule which would bind their discretion, and indicate that though all the features named may be present, the decision wliich it is sought to appeal from may be too plainly right or unat- tended with sufficient doubt to justify the exercise of the prerogative. If the party who desires to appeal to the King in Council was the party appellant in the High Court, then the fact that he elected to go to that tribunal from the State Court instead of ajDpealing to the Privy Council > Wehh V. OiUtrim, (1907) A.C. SL ■Daily Tclegnxph Xewspaptr Co. v. McLaiKjhlin, (1904) A.C. 776. ■'8 A.C. 103. 234 THE COMMONWEALTH OF AUSTRALIA. direct, is an additional fact which as a rule will stand in the way of the reception of his appeal in England.^ This practice was laid down before the decision in Parkin V. Jaines^ was known in England, and it is possible that one of the effects of that case may be to overcome the reluctance with which appeals are received by the Privy Council. In cases where the High Court's decision was given on appeal from a single Judge exercising the jurisdic- tion of the Supreme Court of the State, and the petitioner to the King in Council was not the person who invoked the jurisdiction of the High Court, the case for admission of the appeal in the Privy Council may receive special considera- tion. Several instances of cases in which the Privy Council has entertained appeals from the High Court will be found in the reports, of which the most notable are : Colonial Bank v. Marshall^ Perry v. Clissold,^ Blake v. Bayne,^ and Macintosh v. DunnP Leading cases in which leave to appeal was refused are Neiv SoiitJi Wales Commissioners of Taxa- tion V. Baxter, '^ — the last of the Income Tax cases — and the Attorney -General for N.S. W. v. Collector of Customs.^ 11. The establishment of a limited class of cases in which no appeal is permitted from tlie High Court except upon the certificate of that Court, is one of the most distinctive features in the Constitution, and connnits to the Australian tribunal for final determination exactly that class of question which, it may be conjectured, would, from its importance and the nature of the interests engaged, have been most OCT ' readily received in the Privy Council. The question of ^Victorian Railway Commissioners v. Broion, (1906) A.C. 381. 2-2 C.L.R. 315. »(1906) A.C. 559. ^(1907) A.C. 73. • MIOOS) A.C. 371. «(190S) A.C. 390. •(1908) A.C. 214. ^(1909) A.C. 345. THE APPELLATE JURLSDICTIOX. 235 policy involved is hardly one for discussion here. On the one side may be set a tribunal far removed from the strong feelings which this class of question — closely verging on politics — may excite, and Avhich secures the advantage of a judicial determination without drawing the colonial judiciary into the whirl of political contest. But this advantage may be too dearly bought, if it is at the price of a want of know- ledge of all those conditions of a countr}^ — historical, social and economic — which enter into the construction of a Con- stitution. To this must generally be added the unfamilarity of English lawj'ers with the very nature of constitutional problems, which leads to an impatience of their discussion, and to a disposition to take short cuts. On the whole, an arrangement which places in the hands of an Australian Court the final determination of the sort of questions pro- vided for in sec. 74, appears the better in present conditions. 12. The effect of the section was first brought under consideration on an application for a certificate in Deakin V. Wehh^ where the Court pointed out that the intention was that, for the determination of the class of questions there described, tlie Court should be the tribunal of ultimate appeal, unless the Court itself was satisfied affirmatively that there was some special reason which would justify it in certifying that the question ought to be determined b}- the King in Council. Thus a grave responsibilit}'' was cast upon the Court after careful consideration, and it would be a dereliction of duty ii' it were to decline to accept that responsibility, unless it were in a position to say in intel- ligible language that there was some special reason, capable of being formulated, why tiic I'rivy Council was, and the High Court was not, the proper ultimate judge of the ([ucstion. The position was unique, presenting no analogy to the familiar case of appeals to tlio Privy Council by M1904) 1 C.L.K. 619. 236 THE COMMONWEALTH OF AUSTRALIA. special leave, and therefore the principles settled for that case were inapplicable to it. The questions raised in the case under discussion — whetlier the American cases asserting the immunity of instrumentalities were applicable to the Australian Constitution, and whether the State income tax imposed on the salaries of federal officers was an infringe- ment of the rule — were not matters which the Court was " not competent to decide and ought not to decide as the tinal Judges of last resort " (p. 625). The extent of public interest in the matter, and the desire of the States Govern- ments to have the decision of the Privy Council, were treated as irrelevant. Barton J. adverted to the liistory of the section, and asserted tliat the section was " designed in the first place to safeguard the riglit of the people who liad framed it and had voted upon it, to interpret it and to bring to an end conflicts between Commonwealth and States by the decision of the Court which the Constitution was callinof into existence, and in the same way to deal with cases which arose between two or more States, because in respect of the new self-governing powers constitutional conflicts between two States come witliin the category of local affairs. Primarily, then, it was intended that this Court should take the responsibility of deciding the ckiss of questions of which that now before the Court is one " (p. 628). The provision that for " special reasons " a certificate of apjDeal might be granted, was intended primarily to provide a means whereby Australian constitutional cases involving the public interests of parts of the Empire external to Australia — a matter too elusive and indefinable for exact statutory expression — might be ultimately decided by the King in Council (p. 267). O'Connor J. was so strongly impressed with the nature of the responsibility cast on the Court that he liad no hesitation in saying that if it were found that, by a current of authority in England, it was likely that, should a case go to the Privv THE APPELLATE JURISDICTIOX. 237 Council, some fundamental principle involved was likely to be decided in a manner contrary to the true intent of the Constitution as the Court believed it to be, it would be the duty of the Court not to allow the case to go to the Privy Council, and thus to save the Constitution from the risk of what the Court considered a misinterpretation of its funda- mental principles (p. 631). In this emphatic way do the Justices express their sense of the duty of the Court as the interpreter and guardian of the Constitution. The attitude of the Court is even more strikingly illus- trated by the subsequent history of the income tax cases. In the case of Flint v. WeblP- the C'ourt refused a certificate for appeal, although their judgment from which an appeal was sought was in conflict with the decision of the Privy Council in Wehh v. Outtrim- and was based on decisions of the High Court of which the Privy Council had explicitly disapproved, and although two of the five members of the Bench had dissented from th(^ judgment of the Court. The refusal of the ccrtiticate was concurred in by all the mem- bers of the Court. 13. The section not merely establishes the judgment of the High Court in the particular case against the possibility of reversal or alteration on appeal ; it establishes the inter- pretation which the Court has put on the Constitution — the ratio decidendi as well as the decree or order. It asserts the imperative and final authority of the case as a precedent, so that not merely may the judgment not be reversed as between the parties, but its reason may not be over-rtiled in a case competently before the Privy Council. So the High Court declared in Baxterw Commissioners of Taxation.'^ The question decided in Deakin v. Wehh by the High Court had 1(1907) 4 C.L.K. 117S. 5(1907) A.C. SI. 3(1907) 4 C.L.R. 1087. 23(S THE COMMOX^VEALTH OF AUSTRALIA. been raised again in proceedings in the Supreme Court of Victoria, and the Commissioner of Income Tax for Victoria appealed direct to the Privy Council, who, in Wehh v. Outtrim} held, contrary to the decision of the High Court, that the American doctrine of instrumentalities was not applicable in the Commonwealth, and that federal officers were liable to pay State income tax on their salaries. In Baxter v. Commissioners of Taxation it was contended by the State that the decision in Wehh v. OiUtrim was an authority binding the High Court, and had the effect of over-ruling Deakin v. Wehh. It was argued that there was nothing in the Constitution to detract from the position whereby the King in Council, adjudicating in a matter competently before it — of which of course it must be the judge — gave the law to all Colonial tribunals. It was impossible that the Constitution should have set up two independent tri- bunals as final interpreters of the law ; one must prevail over the other. The Constitution permitted appeals on these matters to go from the High Court to the Privy Council with the consent of the High Court ; it permitted them to ffo from the State Courts without the consent of the High Court. There was no provision in any circumstances for an appeal from the Privy Council to the High Court. The final authority of the Privy Council's decision as pre- cedent was not limited by its power to reverse judgments which disregarded them, any more than the authority of judgments of the House of Lords depended on whether, in a particular case pending in an inferior Court, an appeal might be taken to the House of Lords. It rested upon the status of supremacy belonging in the one case to the King in Council, in the other to the King in Parliament. The High Court, however, considered that the mere protection of the parties in the particular case against a reversal of the judg- M1907) A.C. 81. THE APPELLATE JURISDICTION. 239 nient by the Privy Council, was not in itself an object of sufficient importance to account for the provisions of sec. 74. The primary object was to determine the authority to which the interpretation of the Constitution in the class of cases within the section should be committed. That object would be defeated if the High Court was to be bound in the way suggested, and it was considered that the unusual phrase- ology of the section — the use of the word " decision " in place of judgment, order, decree, and tlie like, and the express reference to " the question " decided — was an apt and sufficient mode of expressing the intention that the question of law decided by the High Court should not be brought to review in the Privy Council in the same or any other case except with the consent of the High Court itself. From this view Higgins J. dissented. These divergent interpretations by the High Court and the Privy Council are a serious blot on the Constitution. The view of the High Court carries with it a solution of the difficulty, in that it imports a duty in the Privy Council to accept in all cases before it (even though coming from the State Courts), the law as laid down by the High Court, so far as concerns all tlie questions included in the first para- graph of sec. 74. The Privy Council, on further considera- tion, may accept that view ; and Webb v. OiUtriin} is not conclusive that it will not, since it is not clear that the Privy Council regarded the case as falling within the terms of sec. 74. The application to the Privy Council for leave to appeal from the decision of tlie High Court was refused on grounds outside the present (luestion, and contributes nothing to their elucidation.- M1907) A.C. 81. "(19(18) A.C. "214. Leave to appoiil from the judgineiit of the High Court ill A tlornty ■General for New South ll'a^es v. Collector of Customs — anotlier of the instrumentalities cases — was refused by the Privy Council on the ground that the matter was within sec. 74 (1909) A.C. 345. 240 THE COMMONWEALTH OF AUSTRALIA. A mode of avoiding a recurrence of the difficulty was found by enacting in the Commonwealth Parliament that in matters (other than the trial of indictable offences), involving any question within sec. 74, the jurisdiction of the Hio-li Court shall be exclusive of the jurisdiction of the Supreme Courts of the States ; " so that the Supreme Court of a State sliall not have jurisdiction to entertain or deter- mine any such matter either as a Court of lirst instance or as a Court of Appeal from an inferior Court."^ The result is that in the class of cases referred to, no appeal to the Privy Council can be taken as of course under the Orders in Council, which are limited to judgments of the Supreme Courts of the States ; and it is assumed that the Privy Council W'Ould not give leave to appeal to itself from an intermediate Court of federal jurisdiction. But the fact remains that we have now in the reports vital differences in the fundamental principles of interpreta- tion applicable to the Constitution, as enunciated by the Privy Council and the High Court respectively, and these differences extend beyond tlie determination of particular questions under sec. 74.- 14. The question whether a case does involve some questions falling within sec. 74 is not an easy one, and a difference may arise as to tlie proper tribunal — the High Court or the Privy Council — for determining whether a decision of the High Court is upon a question within the section. It is clearly not enough that the question should be as to the powers of Commonwealth or State only ; it must be such that the concession of the power to the one is the denial of some — not necessarily the same — power to the other. Thus the question whether the Commonwealth may '^ Judiciary Act 1908, sec. 2. -The jutlgment of Isaacs J. on the "corporation " question in Moorhead v. Hnddart Parker, (I'JOfi) C.L.R. will be found to illustrate these diflereuces. '^ \ THE APPELLATE JURLSDICTION. 241 make a law on any subject is not generall}^ within sec. 74 — it puts in issue no power of the State to legislate on the same subject. On the other hand, the question whether either State or Commonwealtli may levy an income tax on the salaries of the servants of the other, is within the sec- tion, since, though the power of the States to impose such a tax on federal officers is quite consistent with a power in the Commonwealth to impose a similar tax on the same persons, the matter in issue is whether the existence of the power in (question is an interference with other powers of the Federal Government, and therefore involves the extent of those powers.^ So, the Privy Council holds that the question whether the State Governments can import goods without paying duties of Customs thereon, so far as it depends on the power of the Commonwealth to exact such duties from those Governments, is within the section.- The relation of the High Court to tlie Supreme Courts of the States in the exercise of the appellate jurisdiction of the former was considered in two cases — Peacock v. Osborne^ and Bayne v. Blake.* In both cases the High Court had reversed judgments of the Supreme Court of Victoria, and remitted the cause to the Supreme Court for execution under sec. 37 of the Judiciary Act 1903, whereby it became " tlie duty of that Court to execute the judgment of the Hiirli Court in the same manner as if it were its own judgment." The cases were set down in the Supreme Court for inquiries as to damages ; but on information that an appeal was pending before the Privy Council, a Judge in Chambers granted an application to stay proceedings until further order in Peacock v. Osborne, and in Bayne v. Blake ^Baxter v. Commissi ioners of Taxation, (1907) 4 C.L.R. at pp. lllS-9. - A t/orney- General for Xeio Soulh Wales v. Collector of Customs, (1909) A.C. 345. »(U107)4C.L.I{. ir)64. M1908) 5 C.L.II. 497. 242 THE COMMONWEALTH OF AUSTRALIA. each of two learned Judges, in whose list the case was put for hearing, adjourned the matter until the result of the Privy Council appeal should be known. From these orders appeals were taken to the High Court, and in Bayne v. Blake the relation of the High Court and the Supreme Court in such cases was fully argued. It was contended that when a cause was remitted to the Supreme Courts of the States, it was remitted to them subject to the powers exerciseable by them over their own proceedings, including the power to hear cases at such times as their Rules and convenience sliould dictate. The Supreme Courts were not the servants of the High Court, and the application in the present case was equivalent to an application for man- damus ; if the Judiciary Act must be so construed as to make them so, it was pro tanto ultra vires. The High Court held that the Supreme Court had no power to make any order preventing the execution of a judgment of the High Court, and that these orders, whether for a stay of proceedings or for an adjournment of proceedings, were in the circumstances orders thwarting or obstructing the exe- cution of the judgment, were wrong, and must be set aside. The Court adverts to sec. V. of the Constitution Act declar- ing that all laws made by the Parliament shall be binding on the Courts, Judges, and people of every State, as casting a duty upon the State Courts, their Judges, and officers to execute the orders of the Court, and justifies sec. 37 of the Judiciary Act by reference to the power of the Parliament under sec. 51 (xxxix.) of the Constitution to make laws incidental to the execution of powers vested in the Federal Judicature. PART IV.-THE POWERS OF THE COM- MONWEALTH GOVERNMENT. CHAPTER I. THE POWERS OF COLONIAL LEGLSLATURES. Every Act of a Legislature to be operative, must comply with two conditions — it must be valid in respect oi" form, and it must in point of substance be witliin the powers of the enactintr authority. Fornud Validity. — Wherever a document is relied on as a Statute, the first matter to be determined is whether the document is what it purports to be — an Act of Parliament. Even in rcs-ard to alleo^ed Statutes of the Eng-lish Parlia- ment questions have arisen whether they had in fact received the assent of all parts of the Legislature^; and in Europe where, notwithstanding the existence of funda- mental Constitutions, the Legislatures are the oiilv com- petcnt interpreters of their own power, the judicial office necessarily extends to an in([uiry into the authenticity of the alleged act of letjislation. ^.See May, Parliamentary Practirc, lOLli ed., p. 4SS ; Craies, Slatutt Law, p. 34. For a consideration of the formal validity of the ConslitiUion Act of Victoria 1855, see Jenks, Qovernment of Victoria, pp. 'J02'205. 244 THE COMMONWEALTH OF AUSTRALIA. In the case of subordinate Legislatures we frequently find that the procedure to be observed in legislation has been prescribed in certain classes of case, and it becomes important to consider liow far the observance of such forms is essential to the validity of the Statute, and what authen- tication of the due observance of the prescribed forms is required by Courts of law. The Constitution Acts of the several Colonies have commonly dealt with the procedure to be observed in the case of monev bills and bills for the amendment of the Constitution ; and doubts have been entertained as to the validity of Acts amending the Constitution which are not shown to liave been passed by the statutory majorities, or to have been reserved for the Royal Assent.^ In 1864, the Law Officers of the Crown (Sir Roundell Palmer and Sir Robert Collier) expressed the opinion that " when the power of legislation is given not to a simple majority, but to certain specified majorities in one or both branches of the Legislature, it is evident that such majorities are a sine qua non to its exercise, and, consequently, that the Judges are not at liberty to treat any law on that subject as valid if it appears either on the face of the law itself or by other proper evidence that it was not in fact passed by the required majorities." The customary forms of legislation, however, afford no indication of the use of any special pro- cedure ; and in the opinion referred to, the Law Officers did '^E.r/., the ConMitution. Act 190.3 of Victoria. See the opinions of Messis. Isaacs, Higgins and Ciissen printed in the Melbourne i/eraW, May 14th and loth, 19C3. As to the practice under the American Const itutions, see Cooley, GonditiUional Liinitalions, 1 14 et seq., 186 et aeq., 24.5-6, and Field v. Clark, 143 U.S. 649, where, at p. 661, will be found a very full note on the decisions of the States Courts as to the conclusiveness of Acts of the Legislature. In the United States, tlie Courts have gone ver}' far towards holding that the ordinary distinction between mandatory and directory provisions does not apply to Constitutions, and that as those high and solemn instruments do not condescend to mere procedure, all their enactments must be treated as mandatory. See also Millard v. lioherls, (1905) 202 U.S. 429. THE POWERS OF COLONIAL LEGLSLATURES. 245 not think it absolutely necessary " that it should appear on the face of the law itself that it was passed by the requisite majorities (if the fact can be otherwise proved) in order to authorize the Judges to act upon such legislation as valid and effectual ;" and they inclined to think, though they treated the ponit as admitting of some doubt, that " the Judges ought to presume until the contrary is proved, that every Act which has passed the Legislature, and which is authenticated as an Act of the Legislature, was passed by such a majority as would be necessary according to law to give it effect." Accordingly, the Colonial Laivs Validity Act 1865, sec. G, provides that " the certificate of the clerk or other proper officer of a legislative bod}^ in any Colony to the effect that the document to which it is attached is a true copy of any . .- . colonial law assented to by the Governor of such Colony .... shall be 'prima facie evidence thcXt .... such law has been dulv and properly passed and assented to." The question remains whether in all cases this presumption can be rebutted, and how in any case it may be rebutted. The proper evidence for rebutting the presumption would, of course, be the Journals of the Legislature ; but as each House controls its own records it seems to be within the power of the Legis- lature to refuse to make that evidence available. In Bickford SmitJt cO Co. v. Ahisgrove} the (juestion was raised as to the observance of the proper foiins in the case of a Money Bill, and the issue fell because the Speaker of the Legislative Assembly of Victoria refused to allow the pro- duction of the Journals, and the Act was treated as valid. Li the Common wealtli, it is provided by the Evidence Act 1905, sec. 7, that the votes and proceedings of Parliament shall be provable by the production of documents purporting to be such votes and proceedings and purporting to be printed '17 V.L.R. -290. 246 THE COMMONWEALTH OF AUSTRALIA. by the Governineiit Printer. But apart from the question of evidence, can the presumption of validit}^ be rebutted ? So far as the common provisions concerning Money Bills are concerned, the Judicial Committee of the Privy Council in Powell V. Apollo Candle Co} said : — " It has been argued that the proviso tliat all Bills for appropriating any part of the public revenue or for imposing any new rate, tax, or impost shall originate in the Legislative Assembly in the Colony, is at least a direction on the part of the Imperial Parliament that all levying of taxes in the Colony shall be by Bill, originating, as in this country, in the Lower House. It may be that the Legislature assumed that with respect to customs duties such a course would undoubtedly be pursued as is in accordance with the usages and traditions of this country ; but it appears to their Lordships impossible to hold that the words of an Act which do no more than prescribe a mode of procedure with respect to certain Bills, shall have the effect of limiting the operation of those Bills."^ " Laws " and " Proposed Laws." — This is the assumption which underlies the use of the terms " law " and " proposed law " in the Commonwealth Constitution, sees. 53-59. Thej^ indicate the difference between the product and the machin- erj^ ; " law " is sanctioned by ill usage as an equivalent for " Act " or " Statute ; " " proposed la-w " is an innovation, and a somewhat clumsy one, indicating " bill." Where the Con- stitution prescribes the procedure upon " proposed laws," the provisions are generally directory merely ; they are matters of Parliamentary practice attended with Parliamentary and no A. C. pp. 282, 290. -Mr. Burgess, speaking of the United States Constitution, Art. i., sec. 7, whereby " Bills for raising revenue shall originate in the House of Repre- sentatives," regards the matter as a legal question determinable by the Courts, and not a political question determinable by the Legislature alone. {Political Science and Constitutional Lair, vo]. i., p. 196.) Seethe recent decision of the Supreme Court of the United States in Millard v. Roberts, (1905) 202 U.S. 429. ■■».-*. '^: % - %^^ THE POWERS OF COLONIAL LEGISLATURES. 247 political sanctions, and may be waived by the concurrence of the enacting authorities. Where, on the other hand, the Constitution speaks of " laws," it makes the observance or non-observance of the provisions a legal and not simply a political question.^ What is the legal sanction ? In the absence of express direction, nullity. By sec. 55 " laws im- posing taxation, except laws imposing duties of customs or excise, shall deal witli one subject of taxation only " ; if they deal with more than " one subject of taxation," the whole will be void. " Laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only " ; if either trans- gress, it is invalid. But in providing that " laws imposing taxation shall deal only with the imposition of taxation," sec. 55 expressly provides that " any provision therein deal- ing w'ith any other matter shall be of no effect." There are two cases> however, in which the term "pro- posed law " introduces provisions which go to the validity of the enactments to which they relate — in sec. 60 and sec. 128. Sec. 128 deals with the alteration of the Constitution and will be referred to under that head. By see. 60, it is provided that " a proposed law reserved for the Queen's pleasure shall not have aiu' force unless and until within two years from the day on which it was presented to the Governor- General for the Queen's Assent the Governor- 'Tlie ambiguity of '' law " in the English hmguiige has often been com- mented upon. The inconvenience of using the same term for jus or lex is to some extent mitigated by the j)re-eminence of tlie Imperial Parliament and tiie fact tliat Statute is our type of law. But the use of "a law" to describe an enactment of a subordinate Legislature leads us at once to con- fusion and paradox. For a " law " made by the Parliament of the Com- monwealth or a State may be invalid, may not be " law" in tiie abstract. Tiie authors of tlie Commonwealtli Constitution are not the originators of the anachronism, a void or invalid " law." The same thing may be found in the Colonial Laws Validity Act ISGo, which declares that " Colonial laws " shall, in certain cases, "be and renuvin absolutely void and in- operative." 248 THE COMMONWEALTH OF AUSTRALIA. General makes known by speech or message to each of the Houses of Parliament or by Proclamation that it has re- ceived the Queen's Assent." Substantive Validity. — In no respect is there a greater difference between the American Legislatures and the British Colonial Parliaments than in this : that American Constitu- tions have been developed under the influence of the legal sovereignty of the people, and all legislative power vested in organs of government has been regarded as Locke regarded it — a trust held by delegation, not to be transferred or lodged elsewhere than where the people have placed it. The cases based on this principle All a large section in all attempts to describe the legislative power in either the Federal or the State Constitutions in the United States.^ In its most singular form, it prohibits the reference of a proposed law to the will of the people themselves. British Colonial Constitutions have not been established by the people ; they have been granted by the Crown or by the Imperial Parliament, whence it might have been inferred that Colonial Legislatures were mere instruments charged with the function of executing by delegation the powers belonging to the constituent authority ; in other words that they were of a more essentially delegate kind than the Ameri- can legislatures, since they were established by a determinate authority. But as a matter of fact, the English tradition of self-government has joined with the habit of Parliamen- tary government to reproduce in the Colonies institutions which find their model in the powers of the English Parlia- ment, with the consequence that the Legislature has a legal, the electorate merely a political, supremacy. The great attention which the framers of the Federal Constitution gave to American institutions, and the influence which American decisions have had and must continue to ^Sec Cooley, Conalitutional Limitations, pp. 16."M74. THE POWERS OF COLONIAL LEGISLATURES. 249 have, in the interpretation of the Australian Constitution, makes it the more important to regard with care their essential points of difference. The sovereignty of the Imperial Parliament, its power to make paramount law^s on all subjects wliatever, with the fact of uniformity in the mode of exercising its powers, tends to obscure the real nature of the power exercised upon any particular occasion. But if we regard the authority of the Crown, in respect to the Colonies, we see at once a difference in the nature of the powers which may be exer- cised. The Crown may by its prerogative convene a representative assembly in any Colony, whether acquired by conquest or cession or by settlement, except so far as it may be impeded by statute. But that the assembly so convened is not the mere agent of the Crown is shown by two facts : first, that in no case can the establishment of such a legislature be recalled by the Crown alone, there is no inherent power to cancel or recall the act^; secondl3^ that until the passing of the British Settlements Act 1887, this constituent power of the Crown existed, in the case of .settlement colonies, without the Crown having any ordinary legislative power there at all. So, when the Constitution is established by Act of the Imperial Parliament, the action of Parliament may properl^^ be described as constituent rather than legislative ; and though it creates the legislature, determines its authority and defines the extent of the powers to be exercised, the powers so conferred, with the possible exception to be mentioned hereafter, are regarded as powers of self-government, and not as mere substitutes for the direct action of the paramount authorit3^ This is not mere political doctrine, but a legal principle ^Campbell v. Hull, (1774)20 St. Tr. 2.S!). In tlie case of conquered or cessionary Colonies, the Crown may in granting representative institutions, reserve power to legislate : see Jenkyus, p. !».5. 250 THE COMMONWEALTH OF AUSTRALIA. witli important practical consequences. The principle that a Colonial Leojislature is not acting- as a deleofate of the Imperial Parliament has been thoroughly established in law b}^ numerous decisions in cases where it has been sought to limit its powers by reference to its supposed delegate character ;i and it is now a truism tliat " an Act of the local Legislature lawfully constituted has as to matters witliin its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be con- trolled by the Imperial Parliament."- In R. v. BuraK^ Lord Selborne, in delivering the decision of the Judicial Com- mittee, described the powers of an Indian Legislature in terms which are applicable to Colonial Legislatures gener- ally. He said: — "The Indian Legislature has powers which are limited by the Act of Parliament which created it, and can, of course, do nothing beyond the limits which circum- scribe those powers. But, w^hen acting within those powers, it is not in txny sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as- those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question ; and the only way in which they can properly do so is by looking to the terms of the instrument by which affirma- tively the legislative powers were created, and by which negatively they are restricted. If what was done is legis- lation within the general scope of the affirmative words which give the power, and if it violates no express con- dition or restriction by which that j)ower is limited (in 1/?. V. Burah, ;? A.C. SS!); Hodgt v. The Queai, 9 A.C. 117 ; Powell v. Apollo Candle Co., 10 A.C. 282. -Phillipi V. Eyre, L.R. G Q.B. 1. See also Wehb v. OuKrim, (1907) A.C. SI. ••'3 A.C, 889, 904. THE POWERS OF COLONIAL LEGISLATURES. 251 whicii category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge construc- tively those conditions and restrictions." Two principal facts accounting for the plenary power of British colonial legislatures — the tradition of self-cfovern- ment and its association with Parliamentary sovereignty instead of people's sovereignty — have been already referred to. A further fact is that, whether the Crown is or is not a part of the colonial legislature, there is in the Crown, either as an assenting party or from its power of disallow- ance, a power of control in the hands of the Imperial government. Consequently the grant of legislative power may be interpi-eted liberally, and without the implied restraints which might be required by national unity if these legislatures were wholly cut adrift from the Imperial power. This is probably the significance of the observations of the Privy Council in Wchh v. Outtrim,^ where their Lord- ships say : — " No State of the Australian Commonwealth has the power of independent legislation possessed by the States of the American Union. Every Act of the Victorian Council and Assembly requires the a.ssent of the Crown, but when it is assented to, it becomes an Act of Parliament as much as any Imperial Act, though the elements by which it is authorized are different.'"^ But the terms employed are not very happy ; they appear to treat the Colonial Act as a phase of legislation b}" the Imperial Parliament and thus to resort to that very theory of delegation which the Privy Council has so often denounced. The passage cited from the judgment in Webb v. Oaitrim may derive some additional significance from the rea.sons given by the Piiv^- Council in another case decided in 1900. '(1907) A.C. 81, 88. -See also Jiank of Toronto v. Lambe, (1S87) 12 A.C. ")75. 252 THE COMMONWEALTH OF AUSTRALIA. In the judgment of the Board in Attorney -General for Canada v. Cain and Gilhula} the question whether the power of the Dominion Parliament extended to the deporta- tion of aliens, was approached from a consideration of the prerogative of the Crown in such matters, and a delegation of its prerogative by the Crown was inferred from the assent of the Crown to the Act. " The Imperial Government might delegate those powers to the Governor or Government of one of the Colonies either by Royal Proclamation which lias the force of a Statute — Caonpbell v. Hall — or by a Statute of the Imperial Parliament, or by the Statute of a local Parliament to which the Crown has assented. If this delegation has taken place, the depositary or depositaries of the executive and legislative powers and authority/- of the Crown, can exercise those powers and that authority as effectually as the Crown could itself have exercised them."- Without questioning that the power might be validl}" conveyed to the Colonial executive in any of the ways suggested, it certainly appears a novel proposition that the act of the Crown in assenting: to a Colonial Act is to be construed as a delegation by the Crown in the same sense as if the Crown had committed its power to an officer, a proposition which would have this singular result, that what was done under the apparent authority of a Colonial Statute was really done not by the authority of tlie Colonial Government, but by or on behalf of the Imperial Government. It is submitted that the doctrine propounded is not sound. As Sir Henry Jenkyns points out, " the Crown as the chief executive in a possession must be distinguished from the Crown as chief executive power in tlie United Kingdom or Ml 90(5) A.C. 542. -(190G) A.C. at p. 546. THE POWERS OF COLONIAL LEGLSLATURES. 253 tlie whole Empire' V and " even the King in Council, when legislating in that capacity for a Colony, is a local and subordinate Leoislature, and the legislation has no greater territorial effect than if it were enacted by the ordinary Legislature of the Colony."^ Legislative Acts, in modern Constitutions at any rate, derive their validity and effect from the supremacy of the legislative power, a function which is as distinct from the merely mandatary as is government from property. This is recognized in the well- established rule that the prerogative of the King is subor- dinate to his own authority as part of the supreme Legisla- ture — i.e., the Imperial Parliament. It is submitted that the principle in the Colonies is the same, and that so far as a Colonial Legislature may affect the prerogative at all, it is in its legislative and not in any mandatar}' character, and that its statutory powers of legislation are not to be enlarged by blending them with executive powers of the Crown.^ 1 British Rale and Jurisdiction beyond the Seas, p. 12. -Ih., p. IG. "The case of coinage may be taken as an illustration. Tiie jus nidendce monetfc is everywhere an attribute of sovereignty and is under the British Constitution a part of the prerogative of the Crown. It is not doubted to-day tiiat in general those prerogatives of the Crown whicli are exercise- able separately in different parts of the King's Dominions may be abridged or extinguished by ordinary local legislation. Tiius tiie "prerogatives by exception" — immunity from suit, from costs, from taxation — are constantly dealt with ; and it is not less certain that poirers of the Crown may equally be dealt with — that, for instance, tlie Legislature may regulate tlie Crown's power to exclude aliens from the territory of the Colony. If liie Legisla- ture may under its ordinary power make laws for currency and legal tender in that possession, that (it is submitted) is not because the assent of tlie Crown to Acts is a delegation by the (^rown, but because the legislative power prevails over tlie operation of tiie prerogative witliin the possession. Tiie Crown might, however, formerly liy prerogative, and may now by proclamation under the Coi/iaf/R ylr( 1870, sec. 11, establish branch mints in a Colony and make the coinage issuing therefrom legal tender in any British possession beyond tlic limits of the territory. But it could not be 254 THE COMMONWEALTH OF AUSTRALIA. If the view of their Lordships is sound, it Avould appear that any prerogative w^liich may be exercised by the Crowai in its Imperial capacity, may, so far as it concerns the Colony, be equally well dealt with by Colonial legislation, on the ground that the assent of the Crown has the effect of a prerogative act. The Crown may by virtue of the prerogative or of statute alter the boundaries of British possessions in many cases, or divide or join British possessions. (On the subject of Colonial boundaries generally, see Jenkyns, op. cit. pp. 3-4). May the Legislature of any British possession annex otlier territories on the ground that the assent of the Crown to its Act is a valid exercise of the power wdiich belongs to the CroAvn ? Again, tlie Crown may by prerogative cede any portion of its territory to a foreign State. (This is, semhle, the better opinion. But see Jenkyns, op. cit. p. 3. See also Ilbert, The Government of India, 1st ed., p. 210.) If a Colonial Act assented to by the Crown is a mode of exercising an Imperial prerogative, such an Act of Cession, passed by a Colonial Legislature, would appear to be valid, tliough, as being assented to by the Governor in the King's name, it was never seen by the Imperial advisers of the King until after it purported to come into operation. This is the sort of consequence to wdiich we are driven when we ignore the practical necessity for distinguishing in law as well as in politics tlie different capacities of the Crown as executive and as part of tlie Legislature, as exercising Imperial as well as local functions. It illustrates once again contended that the mere assent to a Colonial Act establishing a local currency was such a delegation of prerogative, making the Colonial coinage currency throughout the Britisli Dominions. Briefly, it is submitted that tlie doctrine propounded in the judgment of the Board, so far as concerns the territory of the Colony whose Act is assented to, is unnecessary to support the validity of a legislative act ; and, so tar as concerns places beyond the territory, cannot be invoked to give the Act an extra-territorial operation. THE POWERS OF COLONIAL LEGLSLATURES. 255 tlie straits to wliicli we are put in uindern government by driving too hard the doctrine of the unity of the Crown.^ Our starting point, then, in the case of Colonial Legis- latures, is that they are bodies with " plenary powers," possessing a general and undefined power of government in tlieir territory over all persons and things therein, and that this power extends to the creation of such executive and judicial machinery as well as such subordinate legislative authorities as appear necessary to the Colonial Legislature. The limitations upon a Colonial Legislature are found in certain definite restrictions. 1. In the first place a Colonial Legislature would jorimd facie be bound by the terms of the instrument creating it, whether that was an Imperial Statute, or an exercise of tlie Royal Prerogative. The plenary legislative power would not j^er se carry a power to alter the Constitution itself. In spite of the emphatic assertions of the plenitude of the powers of a Colonial Legislature, and its power to establish organs of government and to define their functions accordino" to its own discretion, tlie Privy Council has suggested a limit to this power : that it could not create and arm with general legislative authority, a new legislative power not created or authorized by the Act of Constitution.-^ J6ut the Legislatures of the several Australian Colonies, by their Constitutions, received power to alter and vary the constitu- tion and powers of their Legislatures, subject to the observ- ance of certain prescribed forms : and by the Colonial Laics Validitij Act 1805, sec. 5, every representative Legislature has full power and is deemed at all times to have had full power to make laws concerning the constitution, powers 'in liobtehnes v. Breiiaii, (1906) 4 C.L.R. pp. 4U(), 403, 405, the High Court of Australia cites with approval the passage of tlie juilginent iu Atloraey-Gtneral for Canada v. Cain and Oilhxda, liere commented on. That case is referred to poMea. -Cf. li. V. Burah, (IsTS) 3 A.C. 889, 23er Lord Selborne, at p. 905. 256 THE COMMOMWEALTH OF AUSTRALIA. and procedure of «ucli Legislature, and to establish and reconstitute Courts, and to make provision for tlie adminis- tration of justice therein. The power to amend the Constitution, whether conferred by the Constitution of the Colony or by the Colonial Laivs Validity Act, exists as a distinct power from the ordinary power of legislation. In many cases it can be exercised only through the adoption of a special procedure, as the approval of an absolute majority of the members of the legislature, or the reservation of tlie Bill for the Royal Assent. But even apart from the necessity of observing special forms where they are required, it seems that the " constituent power " is so far distinct from the "legislative," that ordinary acts of legislation are controlled by the Constitution until it has been amended. This is the principle affirmed by the decision of the High Court of Australia in Cooper v. Com- missioner of Income Tax for Queensland} The Queensland Constitution contained the common provision for the pro- tection of the tenure and salaries of the Judges of the Supreme Court, and also empowered the Queensland Parlia- ment to amend or repeal any of the provisions of the Con- stitution. An Income Tax Act passed by the Queensland Parliament was alleged by the Chief Justice of that State, so far as it purported to tax the salary of his office, to be a reduction of his salary in violation of the Constitution. The Queensland Government contended (rightly, as the High Court held) that the exercise of the power of taxation in respect to the Judges in common with other citizens, could not be regarded as within the prohibition of the Constitu- tion ; but they also contended that if it were, then, as the Queensland Parliament had the amending power, the Income Tax Act must, so far as it was inconsistent with the Consti- tution, be held to be, jpro tanto, an amendment, and to M1907)4C.L.R. 1307. THE POWERS OF COLONIAL LEGLSLATURES. 257 operate in accordance with the ordinary rule that of two inconsistent acts of legislation the latter must prevail. This contention the High Court rejected, and decided that before the Legislature could exercise a power withheld b}^ the Constitution, it must, by an Act directed to that purpose, have amended the Constitution, and so removed the barrier to the exercise of its legislative power. In the words of Griffith C.J. : — " Tlic distinction between an authority to alter or extend the limits of their powers, and an authority to disregard the existing limits, is clear.''^ 2. The general power of a Colonial Legislatin-e to make laws has always been limited by a condition that such laws should not be " repugnant "to the laws of England." This condition received widely different interpretations at different times, tlie narrower views occasionally finding expression in Acts of the Imperial Parliament authorizing Colonial legislation 7ion obstante.^ Latterly, however, prob- ably as a result of the growth of self-government in the Colonies, this restriction was treated as meaning merely inconsistency with any Imperial Act applicable to the Dominions of the Crown generally, or to tlie particular Colony in question, and inconsistency witli fundamental principles.^^ In 18G5, mainly as the result of difficulties 'S.C. at p. 1314. -See Foisytl), Caxen and Opinions on Constitutional Law, p. 23, referring to 6 (& 7 Vict. c. 22, which tinpowers Colonial Legislatures to make laws for receiving the evidence of burharous and uncivilized persons. See also Chalmers, Opinions of Eminent iMivyerx, 2, p. 62 ; Forsyth, pp. 459, 562, South Austrafian Papers ISOl. vol. ii., ^^. 50 ; 1SG3, vol. ii., No. 24 ; 18(54, No. 142, pp. 50 et seq. ; 1SG2, vol. ii., No. GS. ""Contrary to those essential principles of what may be called natural jurisprudence which as modified by the ideas and institutions of Cliristianity have been adopted as the foundation of the e.xisting laws of England ; but that it would not be void in consequence of any divergence from tlie pro- visions of the law of England, which, having no natural connection with any such fundamental principle, are or miglit have been dictated by mere national peculiarity or considerations of temporary or local convenience." (Sir William Atherton and Sir Rouudell Palmer, April 12th, 1S()2, Purlia- mentary Papers, South Australia). R 258 THE COMMONWEALTH OF AUSTRALIA. which had arisen in South Australia, and the opinions of the Law Officers of the Crown^ thereon, the Colonial Laws Validity Act was passed, by which the vague limitations of fundamental principles disappear, and inconsistency with the provisions of some Imperial Act extending to the Colony remains as the single j^rinciple of limitation. T\\q provisions of the Act on this subject are : — Sec. 2. Any Colonial law which is or shall be in any respect repugnant to the provisions of any Act of Pailiament extending to the Colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament or having in the Colony the force and effect of such Act shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy but not otherwise be and remain absolutely void and inoperative. Sec. 3. No Colonial law shall -be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England unless the same shall be repugnant to the provisions of some such Act, order, or regu- lation as aforesaid. The Colonial Laws Validity Act^ is useful as clearing away the mist that surrounded the traditional condition of conformity to the laws of Engkind ; but inasmuch as the powers of a Colonial Legislature are themselves granted by an Imperial Act which extends to the Colony and by which therefore it is bound, and any Act of the Colonial Legisla- ture inconsistent therewith is, by the terms of the Colonial Laws Validity Act, void and inoperative, the question of the extent of the powers granted is still a relevant question and one which Courts of Law are competent and bound to consider. This qualification must be borne in mind in reference to the statement by tlie Privy Council in Webh v. Outtrim'^ that if an Act of the Parliament of Victoria " were rej^ugnant to the provisions of any Act of Parlia- ment extending to the Colony it might be inoperative to ^Si^ Wdliam Atherton and Sir Roundell Palmer ; Sir Roundell Palmer and Sir P^obert Collier. -28 & 29 Vict. c. 63. ''(1907) A.C. SI. THE POWERS OF COLONIAL LEGISLATURES. 259 the extent of its repugnancy (see the Colonial Laivs Validity Act 1865), but witli this exception, no autliority exists by whicli its validity can be questioned or impugned." This brings us to the most distinctive limitation upon the powers of tlie Colonial Legislature as compared with tlie Imperial Parliament. 3. Colonial Leg^islatures are " local and territorial Leo'is- latures " in a special sense. The Imperial Parliament, like the organs of every sovereign State, is limited territorially by the fact that its executive and judiciary, upon which the enforcement of its laws depends, can act effectively only within the territory of the sovereignty itself ; but it can constrain every person and every authority within its borders to treat its enactments as valid, and the rule against the extra-territorial operation of Statutes^ is a rule of interpretation merely, overborne by any clear indication of the intention of Parliament to apply an Act to persons, things, or acts outside the British Dominions. The terri- torial limitation on a Colonial Legislature, however, has been treated as more than a rule of interpretation ; it is a rule in restraint of power, sanctioned not merely by the refusal of Courts beyond the Colony to I'ecognize its authority, but by the refusal of the Courts of the Colony itself to treat the enactment as valid. This is the gener- ally accepted opinion, but it has not passed entirely witliout question.- Many of the cases relied on for the opinion in question are unsatisfactory^, in that they are decisions, not ^See Craies, Stahde Law, Part II., cap. viii. -See Craies, Statute Law, Part II., cap. i.x. ; Lefroy's Lfijislative. Power in Canada, 3"J1 et seq. ; Ilbert's Government of InIn Australia, i:? & 14 Vict. c. 59 ; .% & 37 Viet. c. 22 ; and o8 Vict. o. 3. ■-See a Mumoraiuluin by Vv. R. R. Oarran appended to the Report of (he Royal Commission on (he Xariijatioii Bill, pp. 53 and 5G (Commonwealth P.P. litliT, 2iul sfssioii, Xo. 114), criticizing the conclusions contained in a Memorandum on Colonial Merchant Shiiiping Legislation, by the Solicitor to tile Uoanl of Trade (Commonwealth P.P. 190.'), Xo. 15, p. IS). See also Merchant Shippimj Lef/islattoii in the Colonies, by A. Berriedale Keith, Journal of Comparative Legislation, Xo. 20, April, 1909. 264 THE COMMONAVEALTH OF AUSTRALIA. The jurisdiction of the Admiralty has always been deemed an Imperial matter. Offences within tlie jurisdiction of the Admiralty are coo^nizable by Colonial Courts by virtue of Imperial Acts, principally the Admiralty Offences {Colonial) Act 1849. The Court of the Vice-Admiral in a Colony has always been a branch of the Admiralty, and outside the .Colonial system of Courts and jurisdiction. The Court, its Judge, jurisdiction, and procedure have been regulated by Imperial and not Colonial Statutes and Orders. In 1890, however, by the Colonial Courts of Admiralty Act, this was altered, and the Courts become part of the Colonial estab- lishment,^ and Colonial Legislatures are gfiven a considerable but limited power of vesting Admiralty jurisdiction in the several Courts of the Colony. Tlie Post Office, and Naval and Military defence, have also been functions the course of which has been affected by the notion that they were essentially Imperial, or matters of prerogative beyond the ordinary power of any Colon3^ The Imperial Acts conferring power have, indeed, definitely pro- vided for an extra-territorial operation of Colonial laws which no ordinary power of the Colonial Legislature could give {Colonial Naval Defence Act 1865; Army Act 1881, sec. 177), or have given an express power to vary provisions of the Imperial Act operating in the Colony {Army Act 1881, sees. 156 (8), 169). But the Colonial Naval Defence Act specifically authorizes the raising of a force by virtue of Colonial legislation, and enables provision to be made for its discipline and government withiv. as well as without the Colon}^ ; and similarly the Army Act 1881, sec. 177, provides that the Colonial law shall apply to Colonial militia or volunteers whether within or without the Colony. Curiously enough, the view under discussion i-eceives most explicit expression in relation to the Post Office ; for the ^New South Wales and Victoria are temporarily excepted. THE POWERS OF COLONIAL LEGISLATURES. 265 Colonial Inland I^ost Office Act 1849 confers on Colonial Legislatures power to make laws with respect to their inland posts, and expressly restricts the power to the trans- mission or conveyance of letters within the limits of the Colony (sec. 4). Enouofh has been said of the course of legislation to show that it serves as no sure guide in the practical application of the territorial limitations. The judicial decisions do more to illustrate the difficulty of the problem than to aid in its elucidation. The case of McLeod v. Attorney -General for New Soutli Walen has been already referred to as determining that a Colonial Legislature may not make laws declaring that acts committed abroad shall be justici- able in its Courts as if they were offences committed within its territory. But it has been generally recognized that a Colony may control entry into its territory, and punish the entrance of persons who have committed offences itbroad. As a matter of fact, most of the Australian Colonies, in their zeal against moral contamination, did pass Statutes which prohibited and punished the entr}- of persons who had been convicted of serious offences in any other place within a term of years. Advantage was taken •of this power in framing the ComnionwealtJi Customs Act 1901, sec. 192, which in substance makes it an offence to break on the high seas the seals that have been put on ships' stores in a Commonwealth port by the officers of Customs. The section was drawn so as to make entry into n port of the Commonwealtii with seals broken the gist of the offence ; and the section was supported by tlie Supreme Court of Victoria and the Privy Council." The evasion of the rule in its application to crimes .appears from this not to be very dithcult, and in other M1891) A.C. 455. ■'Kingston V. Gadd, (lUOl) '27 V.L.K. 41S; (1!)();}) A.C. 471. 260 THE COMMONWEALTH OF AUSTRALIA. cases the tests for detenuinino; the extra-territorial cliar- acter of a kiAv are not very obvious. Some light may be drawn from the rules of private international law as deter- mining broadly the sphere of a State's law and jurisdiction, and it would seem that a Colonial Legislature may well extend its laws to all cases which, according to principle, are properly governed by the law of that Colony.^ But it is clear that its limits are not defined by the answer to the question whether in a given case a foreign Court would hold that the laws of the Colony did not apply, or a local Court hold in analogous circumstances that a foreigfn law did not apply. For instance, in AsJthury v. Ellis^ the Privy Council supported a Statute of New Zealand con- ferring jurisdiction on the tribunals of the Colony over persons neither resident nor present within the Colony wlio were parties to contracts made or to be performed in New Zealand, though a judgment given in such a case would not be recognized beyond New Zealand, and though New Zealand Courts would not recognize a foreio;n jurisdiction based on similar grounds. The recent decision of the Supreme Court of New Zealand in lie. The Award of the Wellington Cooks and Stewards^ Union^ calls for special notice as involving a more careful consideration of the nature of this limitation upon the power of a Colonial Legislature than it appears to have received in any other case. The New Zealand Court of Industrial Arbitration had made an award against steam- ship companies whereby inter alia, it was required that overtime should be jjaid for certain work if performed by the emploj^ees in port, and that they should be specially paid for work done on holidays. In the case of two steam- ^See for example Dicey, Conflict of Law^, p. 444, ami note. "(1893) A.C. ;«9. ■''(1906) 26 N.Z. L.R. 394. THE POWERS OF COLONIAL LEGISLATURES. 267 sliip companies — tlie Union Steamsliip Co. of New Zealand and Huddart, Parker & Co. — it was admitted tliat these payments were not made in respect of work done in Aus- tralian ports, and on a prosecution for penalties for a breach of the award, it was argued that the New Zealand Legisla- ture liad no power to impose penalties for acts done or omitted bej^ond its territorial waters. Tiie Court, in its decision, drew a distinction between the two companies, holding that the Union Company, as a New Zealand com- pany, with its head office and management there, its vessels beginning and ending their round voyage (New Zealand — Australia — New Zealand) there, and engaging and paying its men there, was bound, wdiile Huddart Parker's, as an Australian company, witli its head office and management in Australia, its vessels beo-imiing and ending their round voyage (Australia — New Zealand — Australia) there, and engaging and paying its men there, was not. The members of the Court, aofreeino- in the result, diffijred as to the essential crrounds of the distinction. Stout C.J. went the lenofth of declarino- that the inhabitants of New Zealand were subject to the laws of that country even outside territorial limits, and might, without infringing the doctrine of McLeod's Case, be punished in New Zealand for crimes connnitted abroad. So also, there were " New Zealand " ships, whose " law of the flag " was tlie law of New Zealand, even when they were on the high seas. He found the justification for this in the necessary expansion of power with the development of the Dominion ; it was impossible to j)rovide for that peace, order and good government of the Colony for which plenar}^ power was given by the Constitu- tion, if such matters were not subject to New Zealand law. The majority of the Court more fully admitted the prin- ciple of the territorial limitation, and made no claim over inhabitants or ships of New Zealand as such ; and it was 268 THE COMMONWEALTH OF AUSTRALIA. not necessary to consider whether a New Zealand Court could i^unish offences committed abroad as if they were done in New Zealand. The present case was not one of offences committed abroad by New Zealanders ; it was the case of a corporation in New Zealand engaged in a complicated series of operations, some in New Zealand, some on the high seas, some in Australia. The most important elements in the case were that the service to which the award related arose out of a contract in New Zealand, which was to be performed in the course of a round voyage, beginning and ending in New Zealand. This service could not properly be broken up, and the award covered the whole voyage w^hicli was the subject of the conti-act. In respect of the work done in Australian ports, it was pointed out that there was nothing in the award which purported to make such work illegal ; the w^ork was lawful, and the award merely concerned the payment for it, an obligation the content of w^hich could not be regarded as determinable by the law of that particular place in which payment might happen to be made. If the case had been an action in the civil Courts for the difference between the wage provided by the award and that actually paid, the decision would seem to be merely an application of the familiar rule that the obligation of a contract is governed by its proper law ; and there would seem to be no valid objection to a claimant recovering in any jurisdiction to whicli the defendant was amenable. But it was a penal proceeding, open, as the Court held, to any prosecutor, and not practicable in any Courts except those of New Zealand. Still, once it is established that the sub- stantive matter belongs to New Zealand law, it seems to follow that the law of New Zealand mav determine how the obligation shall be sanctioned, whether by civil or penal proceedings. THE POWERS OF COLONIAL LEGISLATURES. 269 Tlie Court recognized that every reason which bound the New Zealand company by tlie award exonerated tlie Aus- tralian company from it. That company would be properly bound by Australian law, if any ; and the Court emphasized the importance internationally of each country restricting itself to its own proper sphere.^ The same result may be attained in another wa}^ The maintenance of connnunications is an essential function of government, and not the less if those communications are bj- sea rather than by land. A disturbance of the country's shipping may paralj'ze its industry and even its police. In such a case etiective measures for the prevention of dis- location must surely belong to its peace, order, and good government, even though they may relate to things done or happening without the jurisdiction. The decision in B. v. Cain and Gilkula- really goes much beyond this, for it sanctions the use of executive force bej'-ond the limits of the Colony, if such be necessaiy to effectuate the power of government. Indeed, on the w^hole subject too little attention seems to have been given to the distinction between the attempt to exercise power outside the territory (as by arresting or imprisoning, or setting up a Court) and merely legislating in respect to matters outside the territory without attempting any enforcement or execu- tion of the laws otherwise than through the executive or judiciary acting in the territory itself. It has never been supposed, for instance, that a Colonial Court could not entertain an action for damages for a tort committed abroad, or a suit for divorce based on misconduct com- mitted outside the territory ; and the Bankruptc}^ and Insolvency legislation of tlie Colonies is based on the 'For tlie operation of llie Coiiuiionwealth Arbitration Laws see 77ie Mirchant >!frvice Guild of Australasia v. A. Currie <0 Co., (190S) 5 C.L.R. 7-7, considered in the ne.xt chapter. -llOOG) A.C. o4-2. See postea. 270 THE COMMONWEALTH OF AUSTRALIA. assumption that a man may be made bankrupt or insolvent on acts committed outside tlie territory. The rule against extra-territorial legislation must not be read in a sense which would defeat or diminish the power to legislate for the peace, order and good government of the territory. This, it is submitted, is the true ground of the deci- sion in Attorney -General for Canada v. Cain and Gilhula. ^ In that case the Dominion Parliament had passed an Act to restrain the importation of alien contract labour, and pro- vided that any person unlawfully landed in Canada mio-ht be returned to the country wlience he came. It was argued that expulsion or deportation from its nature involved the exercise of coercive power beyond the territory of Canada, and that the Act was therefore ultra vires?' The Privy Council held that the power to exclude imported the power to expel persons entering unlawfull}^, and if for this purpose it was necessary to exercise extra-territorial constraint, that power, too, must be implied. The case was applied by the High Court of Australia in support of the deportation clauses of the Pacific Islands Labourers Act 1901 in Robtehnes v. Brenan? The decision in M'Kelvey v. Meaglter'^ also shows that the restriction must be read broadl}^ and not subtly. That was an application to an Australian Court under tlie Fugitive Offenders Act 1881 (Imperial) for the return of a person to Natal who was cliarged with quitting Natal within four months of being adjudged insolvent, in fraud of his creditors. ^(1906) A.C. 542. " Decides in accordance with a well-established jjrin- ciple that wlien a power is granted everything necessaiy to effectuate it is impliedly granted nnless it is expressly forbidden." Per Isaacs J., IlazeUon V. Potter, (1907) 5 C.L.R. at p. 471. ^The same ground was taken in the Canadian Prifinnp.r.s'' Case, (18.39) 3 St. Tr. N.S. 963 at p. 982; in Ray v. McMackin, (Ls7r)) 1 Victorian L.R. 274, and in A'ery. v. Glekh, (1879) Oliver, Bell & Fitzgerald 39 (New Zealand). »(1906)4C.L.R. 395. "(1906) 4 C.L.R 265. THE POWERS OF COLONIAL LEGLSLATURES. 27 1 It was contended that a man could not quit a country while within it ; that therefore the offence could only be committed without tlie Colony. An obvious answer was that a man could not quit the country when he was outside it, and that so far as the act was done within the territory it was within the jurisdiction of the Let^islature of Natal.^ There are certain powers of government which are not exerciseable territorially and severally, but must belong to some single authority in the most complex political com- munity, and be exerciseable by it for the Avhole. Such, for instance, is power of war and peace, and the control over the territorial limits of the whole. No Colonial Legislature can annex territory or cede territory ; such powers extend beyond legislation for the peace, order and good government of the Colonj^ ; they can be exercised only b}^ the Crown In its Imperial capacity, or by virtue of an express delegation of that power. Whether there is any limitation upon a Legislature with plenary powers to make laws for the peace, order and good government of a Colony, which cannot be brought under the essential conditions of political unity, inconsistency with Imperial Statutes, or extra-territorial operation of laws may be doubted. But if there were such a further condition it is not quite clear tluxt it is affected by the Colonial Laius Validity Act 1865, for that Act is limited to objections to Colonial law based on " repugnancy to the laws of England." In regard to all of what niav l)c culled the extraordinary powers of a Colonial Legislature, i.e., those which s^^jring from special grants, whether the purpose is to give extra- territorial operation or to extend the subjects of legislative action, or to supersede j^ro tanto an imperial Act, the ques- tion may well arise whether they are the recognition of an extended area of self-government or whether they are no ^Ib., pp. 280-28 L z< z THE COMMONWEALTH OF AUSTRALIA, 1 more than arrangements of political convenience whereby the Colonial Legislature is made the instrument of Imperial action — a branch of the " administrative " rather than of the " constitutional " law of the Empire. We are familiar in the sphere of local government with the difference between " functions of local o-overnment " and " functions of central government locally administered," of which latter police, the relief of the poor, and education, are the commonest examples. There is obviously room for a similar distinction in Imperial relations. The powers over customs, naturaliza- tion, sliipping, fugitive offenders, inland posts, defence, admiralty, may be regarded as an abandonment of these subjects to Colonial self-government, and not the less though the extent of the power may be cautiously defined in some cases. But wliere in the Extradition Act 1870, the Mail Ships Act 1891, the Coinage (Colonial) fences Act 1858, and some other cases, the Crown may suspend the operation of Imperial legislation in a Colony in favour of a Colonial law, or provide that the Colonial law shall operate as if it were part of the Imperial Statute, or where the Army Act 1881, sees. 156 (8) and 109, authorizes the Colonial Legisla- ture to adjust fines established by Imperial law so as to suit the circumstances of the local population, and to declare the equivalents of such fines in local currency, the special powers of the Colonial Legislature are a recognition that the purpose of the Imperial Legislature may be more eflfectually carried out under local laws. In such a case the Colonial Legislature appears to be truly the instrument of the Imperial Parliament in the same sense as is the Crown in Council when it receives power to make statutory rules and orders. If this political truth receives its legal expression, it would follow that in this limited class of case, at any rate, the usual consequences of de^pgation would attach, and the Colonial Leoislature, beinof itself a delegate, could not exer- cise its functions through another. [273] CHAPTER IL THE LEGISLATIVE POWER OF THE PARLIAMENT OF THE COMMONWEALTH. We proceed now to the consideration of tlie position and powers of the Commonwealth Parliament ; and it becomes necessary to see how far the principles applicable to Colonial Legislatures generally are modified, whether by way of restriction or extension, in this case. In three important particulars ,the Parliament of the Commonwealth is distinguishable from the Parliaments of the Colonies, now the States, of Australia. Its power of legislation is granted only over specified and enumerated objects ; it is subject to a paramount distribution of power among the several organs of government, and it cannot by its own mere act amend the Constitution. It is from the enumeration of its legislative powers that the Commonwealth Government takes its most prominent characteristic ; that it is a Government whose functions are specific and limited to particular subjects. The legis- lative power is not, indeed, contained in any one or two sections ; it meets us in every part of the Constitution. But as the main object of federation was to put under a central Legislature matters which could not be dealt with eftectively 274 THE COMMONWEALTH OF AUSTRALIA. or at all by the Colonial Let,n.slatures, the statement of those matters in sees. 51 and 52 is the verj^ kernel of the measure. The other j)owei\s of Parliament, dispersed through the Constitution, are in general adjective rather than sub- stantive ; they relate not to independent matters, but to the regulation, explanation, or restriction, of the powers con- tained in sees. 51 and 52, or to the regulation of the depart- ments of government, including, in some matters, the constituent elements of Parliament itself. The terms of grant are as follows : — Sec. 51. — The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to the matters enumerated. Sec. 52 is in identical terms, save that it grants " exclu- sive power " over the matters therein enumerated. These terms correspond with the grant of power to the Dominion Parliament to make laws for the " peace, order, and o-ood government of Canada." In Australia, the grant of legislativ^e power to the Colonies has been made in the same or similar terms. In the Australian Courts Act 1828, and Australian Constittdions Act 1850 the word " welfare " is found in the place of the word " order," wdiich is in the Act of 1842 ; the use of the one word or the other seems to be a matter of indifference ; either appears to deserve the description by the Privy Council of the Canadian form — " apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to."^ They do not in themselves confer any substantive power, nor do they, it is submitted, warrant the view that the matters enumerated are merely means towards an end. They simply express the fact that in " a general and remote sense the purpose ^It. V. Hiel, L.R. 10 A.C. 67o. Mr. Lefroy, in LpgidaHve Power in Canada, p. 214, note, regards the substitution of " order" for " welfare " in the powers of the Dominion Parliament as " advised " and significant. LEGISLATIVE POWER OF THE PARLIAMENT. 275 and design of every law is to promote tlie welfare of the community."^ That the legislative powers of a Parliament to which have been committed specific and enumerated matters, arc not, on that ground merely, difl'ereiit in their nature from those of a legislature with authority "in all cases whatsoever" lias been affirmed by several judgments of the Privy Council in regard to the powers of the Provincial Legislatures of Canada, notably in Hodge v. The Queen'' ; and the principle is applied to the Commonwealtii Parliament by the High Court in D'Emden v. Pedder.^ Of a govennnent whose substantive powers are granted by enumeration and limited by the definition of the matters enumerated, it has been said by Marsliall C.J., that it "can claim no powers which are not granted to it by the Con- stitution, and the powers granted to it must be such as are expressly given or given by necessar}'" implication."^ But a proper insistence upon this principle must not lead us to forget that it is an independent government exercising jurisdiction directly over persons, things and territory,^ and that necessary implication therefore assigns to it certain power wliieli, as being an adjunct of all independent author- ity, can hardly be ascribed in any special way to particular subjects. It has been held by the Supreme Court of the United States that it is not indispensable to the existence of an}'- power claimed for tlie Federal Government that it shall 'See Lewis, Mtthods of Obsei'vation and RtasoniiKj in Polilir.s, vol i., p. 4");>, citing Bacon (De Augm. Sci. 1. viii., aph. 5). " Fiuin et scopus quern leije.H iiitiieri, atqti<>, ailqwm jiissioues e' Kaiiclioues xiias deriijere debeiit, non ciUha esf qnain iit cires ftlirittr (l(';/ant." "Hmhje V. The Qiuen, 9 A.C. L30. ■'1 C.L.I!, at ]K no. KMarfia v. Hunter'.'^ Lessee, 1 Wheaton 304, 34.1. HM. Kx parte. Siebnlil, 100 U.S. 371, 394. See also Unilal Slates v. Maurice, 2 Hmciv. 109, United Stales v. Timjey, 5 Peters 12S ; United Stales V. Hod^on, 10 Wall. 407 ; Barton v. United Stales, 202 U.S. 344. 276 THE COMMONAVEALTH OF AUSTRALIA. " be clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from all of them combined. It is allowable to group together any number of them, and infer from them all that the power claimed has been conferred."^ The Court follows Story in the recognition of what he called the "resulting powers," arising from the aggregate of the powers of govern- ment. Instances of such j)Owers are the right to sue and to make contracts (exerciseable by the Executive or such authority as the Legislature may designate), to require oaths from officers of government, to build a capitol or a presidential mansion.- The plenitude of the powers of the Parliament as well as its predominant position amongst the organs of government is indicated rather than created by sec. 51 (xxxix). By this article the Parliament has power to make laws with respect to " 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." Of the similar 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 specifi- cally' given nor is it a grant of any new power to Congress, but it is merely a declaration for the removal of all uncer- tainty that the means for carrying into execution those otherwise granted are included in the grant." ^ ''Le(jal Tender Case.x, (1870) 12 Wallace 457, 534. ^Ib. p. 5.36. 'Story, Commentaries on the Constitution, sec. 1256. See also Tingey v. United States, 5 Peters at p. 128. " Principles of Constitutional Law, p. 105. See also Story, sees. 1236 et seq. LEGISLATIVE POWER OF THE PARLIAMENT. 277 In pursuance of its incidental power, Congress may be deemed to have a complete power of organizing and control- ling the Federal Government except so far as it is restricted by the Constitution. Thus, it was held very recently that Congress, possessing the entire legislative authority of the United States, might make such laws as the public interest required to carry into effect the powers granted to it, and might thus make it an offence for a Senator to receive, or agree to receive, compensation for services before a depart- ment of the United States Government.^ So also it may make laws dealing with violence or corruption at elections.- The import of the clause, as well as the nature of the legislative power of Congress, was expounded by tlie Supreme Court of the United States in McGidloch v. Mary- land;^ which has ever since been the leading authority on the subject. An Act of Congress had incorporated the United States Bank, and the question was whether in the absence of any express power to establish banks or charter corporations, this Act was intra vires. Premising that the nature of a Constitution forbade us to expect an exact detail of the subdivisions of its great powers, and of all the means by whicli they may be carried into execution,'* the Court laid it down that the Government which had power to do an act must be allowed to select the means, and those who would deny to it any appropriate means took upon them- selves the burden of establishing the exception. " We think the sound construction of the Constitution must allow to the national Government that discretion with respect to the means by which the powers it confers are to be carried into ^Barton v. Thompson, (1905) 20-2 U.S. .^44. -Ex parte Yarhrouiih, (18S3) 110 U.S. (iol, 658. =•(1819) 4 Wheatoii 31G. *Cf. Baxter v. CommUnonem of Taxation for N.S. W. , 4 C L. K. at p. 1 105, vliei'e tlie same priiKi[)le is laid down in tlie case of tlie Coimnonwcaltli Constitution. 1 278 THE COMMONWEALTH OF AUSTRALIA, execution, wliicli will enable that body to perform the higli duties that are assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional." In the Constitution were found great powers to levy and collect taxes ; to borrow money, to regulate commerce ; to declare and conduct a war; and to raise and support armies and navies. Whilst it could never be pretended that these vast powers drew after them others of inferior importance merely because they were inferior, the exigencies of the government upon which the powers were conferred involved the collection, transport and expenditure, of treasure over a vast territory. The facilities of banking could not be denied to be an appropriate means for this purpose, and there was nothing in the Constitution which required the National Government to depend upon such facilities as might be ofiered b}^ institutions existing under the laws and subject to the control of the States. " No trace is to be found in the Constitution of an intention to create a dejiendence of the Government of the Union on those of the States for the execution of the great powers assigned to it. Its means are adequate to its ends ; and on those means alone it was expected to rely for the accomplish- ment of its ends. To impose on it the necessity of resorting to means wliicli it cannot control, which another Govern- ment may furnish or withhold, would render its course pre- carious, the result of its measures uncertain, and create a dependence on other Governments which might disappoint its most important designs, and is incompatible with the language of the Constitution. But were it otherwise, the choice of means implies a right to choose a National bank in preference to State banks, and Congress alone can make LEGISLATIVE POWER OF THE PARLIAMENT. 279 the election." The charterinjjf of corporations, thouo'h a sovereign power, was not a substantive power involving an end in itself. It was never more then a means of accomp- lishing some other object, and it was that object wliich must be resorted to to test the power of the Legislature.^ It would be superfluous to attempt any detailed illustra- tion of a principle wliich lias been applied times without number in the American Courts. While it is tlie second principle laid down in McCullocJt v. Maryland — the doc- trine of the immunity of instrumentalities — which has claimed the more attention in Australia, the principle here considered has been tacitly accepted in the Commonwealth and is now expressly affirmed by the High Court.- It has been already pointed out that tlie plenary' power of a Colonial Legislature is " its own " ; that it must be distinguished from cases in which the depositary of power is made the mere organ or instrument for fulfilling the purposes of a superior government. It is not to be doubted tliat in exercising its powers under sees. 51 and 52 (and b}' sec. 51 (xxxvi.), this includes by reference most of the other cases in wliicli the Parliament has power under the Con- stitution), the Parliament is exercising its own powers and is no more the delegate of the Imperial Parliament tlian is the Parliament of New South Wales or Victoria. Nor does it seem, in spite of the fact that it has not plenary constituent power, to be any more the delegate of the electors than is any State Legislature. Hence, the doctrine delegatus iion i^otest delegare has no application to it. To what extent the powers of ihe Parliament to organize government and to distribute powers in relation to the 'For a recent criticism of McCalloch v. Maryland, see an article by Mr. (now Mr. Justice) H. li. Hitrgins in 18 Harvard Law Jieview, p. 55St, and 2 Commonwealth Law Bevietv, p. 97 (1905). ■Jnmhuiina Coal Mine v. Victoriati Coal Minert Association, (190S) 6 C.L.R. 309, P.arton J., pp. .344 5, O'Connor J., pp. .^')^)-8. 280 THE COMMONWEALTH OF AUSTRALIA. subjects committed to it by the Constitution, may be restricted by the constitutional distribution of power amongst the Parliament, the Crown, and the Courts, is elsewhere con- sidered,^ and need not be further dealt with at this stage. The plenary power of legislation in the Commonwealth may be distinguished from a mere regulatory power, which, as probably importing the existence and preservation of the thing regulated,- introduces a number of considerations wdiich, varying with the particular subject-matter, have the effect of limiting in various directions the discretion of the authority concerned. It would, for instance, be doubtful whether, under a mere regulatory power, the Legislature was not restricted to control and supervision of the opera- tions of other people, whether it could assume the adminis- tration of services to the total exclusion of all others therefrom. The plenary power of legislation is not merely a power to regulate : it ranges from creation to destruction ; it may establish as well as prohibit. In regard to territorial limitations upon legislative power, the principles applicable to Colonial Legislatures appear generally to apply to the Commonwealth Parliament. But the doctrine that this limitation must not be construed so as to defeat or diminish j)ow'ers actually granted, has greater scope in relation to the proceedings of a Parliament 'See Part III., Chapter I., " The Distribution of Powers in the Common- wealth Government." See also Part IV., Chapter III., " Executive Power " and Chapter IV., "Judicial Power." ^Cf. Attornty-General for Ontario v. Attorney -General for Canada, (1S96) A.C. at p. .363: — "A power to regulate naturally, if not necessarily, assumes, unless it be enlarged by the context, the conservation of the thing which is to be the subject of the regulation " ; City of Toronto v. Virgo, (1896) A.C. at p. 93: — "Their Lordships think there is a marked difference between the prohibition or prevention of a trade and the regula- tion or governance of it." See also Cooley, Constitutional Limitations, p. 291, note. On the other hand, the power of Congress to regulate commerce has received the widest interpretation. See also The Lottery Cases, (1902) 188 U.S. 354 et seq., and cases there cited. LEGISLATIVE POWER OF THE PARLIAMENT. 281 wliich has power to make laws with respect to " external affairs," " fisheries beyond territorial waters," and a number of other matters which regard things existing or occurring outside the Commonwealth. The case of Kingston v. Gadil^ already referred to, may serve as an illustration. In that case it was held that the plenary power over Customs, extendino; as it did to authorize the taxation of all goods introduced into Australia, would supj^ort a provision of the Customs Act directinof the sealing of dutiable goods arriving in an Australian port, and imposing a penalty upon entry to any other Australian port with such seals broken, although the actual breach of the seal took place on the high seas beyond territorial waters. The pow'er to make laws for Australia, may thus in particular cases extend to making laws in relation to persons, things, or acts outside the territorial limits of the Commonwealth. Further, the ConvmomveaWi Constitution Act, sec v., contains a provision which enlarges the jurisdiction of the Commonw^ealth beyond its territory or territorial waters. That section declares that the law's of the Commonwealth are in force on all British ships, the King's ships of w^ar excepted, whose tirst port of clearance and whose port of destination are in the Commonwealth.- The effect of this provision is to make the vessels of the class referred to as completely subject to the operation of laws y)assed by the Common- wealth Parliament when they are beyond, as all ves.sels are when they are (vit]dn,i\\e territorial waters of the Common- wealth.-' The law, of course, must be one with respect to '(1901) 27 V.L.R. -lis ; (190.3) A.C. 471. -i'lie iiieaiiing of sec. v. was considered iu tlie negotiations between ihe Australian delegates and tlie Eiigiisli authorities in 1900 (Common irealfli of Australia ConstihUion Bill — Dthates in the Imperial Parliament, irith Appendiceii, Wynians, 1901, pp. 142, 150). See also Parliamentary Debate-'^, 1904, pp. 2()()9 et stq. ""Ex parte Oesselmaii, (1902) 2 S.Il. (X.S.W.) 4:58. 282 THE COMMONWEALTH OF AUSTRALIA. matters committed to tlie Commonwealth Parliament. Any act done or omitted on such vessels in contravention of the law of the Commonwealth is as completely justiciable in Australia as if it were done in a State ; and on tlie other hand, the authority of the Commonwealth in any matter within its sphere is, whether in Australia or elsewhere, as complete a justification for anything done on such vessels as it would be for acts done in the territory of the Conunonwealtli. The High Court applied tliis provision to determine the limits of the application of the CointnonweaUh Conciliation and Arbitration Act 1904. In the case of the Merchant Service Guild of Australasia v. A. Ciirrie & Co. Proprietary Limited,'^ the question was whether the Arbitration Court had jurisdiction to determine disputes as to wages, hours, and conditions of labour between tlie owners of and men employed on a line of steamers trading between Sydney and Calcutta. The owners were an Australian Company, the ships were registered in Australia, and the men were enofaofed in Australia, though they signed articles in Calcutta. The Full Court was asked by the President of the Arbitration Court whether, in view of sec. v. of the Constitution Act, the Court had power to settle the dispute, the claim thus being presented as a whole, and no attempt being made to sever the dispute as to matters wliicli might be done in Australia and those done abroad. The argument presented to the Court for the jurisdiction recalls in many respects the argu- ment presented to the New Zeahind Court in the Wellington Cooks and Stewards' Award, ^ that the ship was an Aus- tralian ship, owned and controlled in Australia, the parties resident in Australia, " citizens of the Commonwealth " ; the 1(1908) 5 C.L.R. 7.S7 ; s.c. Commonwealth Arbitration Reports, 190.5-1907, p. 1. -26 N.Z. L.R. 394. See preceding chapter. LEGISLATIVE POWER OF THE PARLIAMENT. 283 trade an Australian trade, beo^innincj and endino- in Aus- tralia, and that an award, even as to matters beyond the Common wealtli, could in the circumstances be made eti'ective against the respondents. The Court held that the jurisdic- tion of the Court depended on whether the ships were sub- ject to the legislative power of the Commonwealth as detined in sec. v., that, in that section, " port of destination " meant final destination, and therefore the Act applied only when the beginning and the end of the vovage w'ere both in the Commonwealth. In this case that condition was not fulfilled, for there was here no " round voyage " beo'innino; and endino- in Australia, tlie evidence leading to the conclusion in fact that, if the vovaii-e began in Australia ' t/ o o it ended at Calcutta. In this respect — the absence of tlic " round voyage" — the case, of course, difi'ers from the Wel- lington Cooks and Steiuarcls' Avjurd: and the High Court, with the New Zealand case before it, makes no connnent on that case. Finally, it is to be observed that under sec. 122 of the Constitution, the plenarj' authority of the Commonwealth may extend to places outside Australia altogether, such places being " placed by the Crown under the authority of and accepted by the Connnonwealth, or otherwise acquired by the Commonwealth." Such authority is exercised over Papua (British New Guinea).^ A question of some importance arises as to the power of tile Connnonwealth to make local laws ap})lieable to part only of its territory, and not applying generally throughout the whole Connnonwealth. Uniformity of bounties (sec. 51), absence of discrimination in taxation (sec. 51), and of pre- ference in trade, commerce and revenue (sec. 99), are expressly provided for. But oiiierwise it would seem to be 'See Papua Act 1905, wliicli recites llie history of the acquisition, in relation to wliicli see iUso Strarhan v. CommoiuceaUh, (190G) 4 tM-.K. 4.1.5. 284 THE COMMONWEALTH OF AUSTRALIA. a matter of legislative discretion to determine whether the interests of the Commonwealth require uniform or diverse, general or local legislation. So far as concerns those matters which are put under the exclusive power of the Commonwealth Parliament, including those nev^r subjects over which the Colonial Legislatures may have had no power, this principle may be accepted without any (jualifica- tion, since the Commonwealth Parliament possesses the sole legislative power exerciseable within the Commonwealth, and the State Parliament is unable to cover the local ground. In respect to these subjects over which the State has power within its own area, it is oljvious that the interests of the whole may require special regulation in a single State or locality, and such regulation would be a law for the peace, order and good government of the Commonwealth in respect to that subject, though it required something to be done or forborne only in the State or locality in question. But the position is more difficult where the law is clearly not part of a general system of regulation, but is local or special. For instance, could the Commonwealth Parliament pass an Insolvency Act for the State of Victoria, or a Divorce Act for New South Wales, or an Act establishing old-age pen- sions in South Australia and not elsewhere ? It has probably been settled for Canada that, so far as the enumer- ated powers of the Dominion are concerned, the Parliament of Canada may pass an Act for one part of the Dominion and not another, if in its wisdom it thinks the legislation applicable to or desirable in one and not in the other. But this conclusion has been reached mainly because the Dominion powers over these subjects are exclusive powers; and as it is not clear that the Provincial Legislatures may, under their power to make laws on " matters of a merely local or private nature in the Province," deal substantially with Dominion ° Lefroy, pp. 567 et seq. LEGISLATIVE POWER OF THE PARLIAMENT. 285 subjects at all, there would be a failure of leo-islative power if the Parliament of Canada could not deal with them irrespective of area. E concesso, this failure would not arise in Australia. Even in these cases, there have not been wantinoj in the Privy Council indications of an opinion restrictincr the Parliament of Canada to "oeneral leo^islation." Thus, in L' Union St. Jacques de Montreal v. Belisle} the Board says : — " Their Lordships observe tliat the scheme of distribution in that section (sec. 91, Britislt North America Act 1867) is to mention various categories of general sub- jects which may be dealt witli by legislation. There is no indication in any instance of anything being contemplated except what may properly be described as general legisla- tion." In Fielding v. Thomas^^ Lord Herschell said : — " Tiiere can be no doubt, speaking generally, that the object and scheme of the Act is in sec. 91 to give the Dominion Parliament those thino-s which were to be dealt with as a whole for the whole Dominion." The decision of the Privy Council in the Liquor FroJdbition Case;^ as well as the observations of members of the Board during the argument, affirms the doctrine that, so far as the Dominion legislation proceeds not from tlie enumerated powders but from the general power to make laws for the peace, order and good government of Canada in respect to matters not exclusively assigned to the Legislatures of the Provinces, it may not deal with " any matter which is in substance local or pro- vincial and does not truly attect the interests of tlie Dominion as a whole." It may be expected that in the Commonwealth the Courts 'L.R. G P.C. at p. ;3(). ■-(181(6) A.C. 600. The citation is from Mr. Lefroy's Le.(jUn(ive Power in Canada, at p. 57"), referring to tlie shorthand writer's report. See also p. 5S0. '' Attorney-Gtntral for Ontario v. Adorney-Oenerai of Canada, (1S!)6) A.C. 348. 286 THE COMMONWEALTH OF AUSTRALIA. will be t^uided by the analogy of the meeting of the general residuary power of the Parliament of Canada, and the power over matters of " a local or private nature " in the Legisla- tures of the Provinces, with this difference only, that the broader powers of the State Parliaments in Australia will narrow tlie tield open to the " local legislation " of tlie Commonwealth Parliament. We may conclude that legis- lation by the Commonwealth Parliament for purely local or State purposes will not be intra vires except in the case of the exclusive powers ; but that Commonwealth legislation may in general be directed to a particular State or States if it appears to be part of a scheme for eifecling an object of common interest. This is but one instance of the difficult and delicate task which falls to the Court in determining the limits of authority in a Constitution which distributes power amongst separate organs. It is one of the cases in which legal approach veiy close to political issues, and in which, therefore, the presumj)tion in favour of the validity of an Act of Parliament as a rule of interpretation will operate in full force. Courts of law will be slow to say that the Parliament, assuming to act for the interest of the whole community, has dealt witii a matter of no more than local concern. Express restrictions governing the exercise of the powers of the Commonwealth Parliament over the subjects com- mitted to it are significantly few. Apart from those restrictions which belong to the definition of the subject- matter (e.g., trade and commerce lulth otlier countries and among tlie States ; conciliation and arbitration for the pre- vention and settlement of disputes extending beyond the limits of any one State), there are restrictions applicable to particular subjects, such as taxation, or trade and commerce, which must be considered in connection Avith each such sub- ject. In the course of the argument in the Woodworker's LEGISLATIVE TOWER OF THE PARLIAMENT. 2S7 Case} it was suggested that sec. 99 (" The Commonwealth shall not by anj' law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or part thereof ") does not relate exclusively to the exercise of the financial powers, or the power over " trade and commerce with other countries and amono; the States," but includes every enactment, under whatever head of power, which, by the regulation of trade, even the internal trade of tlie States, does in fact give such a preference, so tiiat, for example, an award of the Court of Arbitration under the Conciliation and Arhitratioii Act miglit be impeaclied on this ground. Two provisions imposing an express restriction upon the Commonwealtli Parliament are found in Chapter V. of tlie Constitution — " The States." One of these is imposed on the Commonwealth Parliament in common with the States, and secures that no subject of tlie King, resident in any State, shall be subject, in any oilier State, to any disability or discrimination which would not be ecjually applicable to him if he were a subject of the King resident in such other State (sec. 117). The effect of this section is considered in the chapter lierein on " The States." Sec. IIG provides that " The Connnonwealth shall not make any law for establishing any religion, or for imposing an}^ religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Com- moTi wealth." 'I'he last provision no doubt imposes a restraint on power, and the prohibition of laws " for establishing any religion " possibly prevents appropriations in aid of religious bodies. In 1899, an attempt was made under a similar provision in the United States Constitution to prevent the execution of ^Ftderated Sawinillers^ A^iociatioii v. Jaine'i Moore cO Sonx, (1909) C.I..K. 288 THE COMMONWEALTH OF AUSTRALIA. an agreement with the Providence Hospital at Washington, a body incorporated by Act of Congress, whereby that body was to receive certain sums of money voted by Congress for IDroviding an isolating building. It w^as contended that as the institution was governed and maintained by Roman Catholics, this was aid to a sectarian institution, and was a law respecting an establishment of religion. There was no suggestion that the benefits of tlie hospital were confined to any sect, and the Court held that the fact that the hospital was controlled by a sect was immaterial, in the case of a body which had been incorporated, so long as the manage- ment was in accordance with the constitution of the body. The grant therefore was held to be lawful.^ In the Mormon Case,^ where tlie provision against prohibition of the free exercise of any religion was relied on, the Court held that " a person's religious belief could not be accepted as a justi- fication for his committing an overt act made criminal by the law of the land." The words "or for imposing any religious observance" are new. The Convention was in- formed that on the strengtli of a decision of the Supreme Court that the United States w^ere a Christian people. Congress passed a law closing the Cliicago Exhibition on Sunday, " simply on the ground that " Sunday was a Christian day." It was represented that the words in the preamble of the Conmion wealth Constitution, "humbly relying on the blessing of Almighty God," might give some support to similar attempts in Australia ; and, accordingly, w^ords were inserted to meet the danger. Exclusive Power of the Commonwealth.— Sec. 52 of the Constitution provides that : — " The Parliament shall, subject to this Constitution, have ^Bradfield v. liobtrls, (1S99) 17o U.S. 291. -United States v. Meynolds, (1878) 98 U.S. 145. LEGISLATIVE POWER OF THE PARLIAMENT. 289 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 acijuired by the Commonwealth for public pur- Sec. 125 governs the determination and establishment of the seat of government ; and the term " places acquired " seems to cover all lands the property in which becomes vested in the Commonwealth for any of the purposes com- mitted to it, whether such property is acquired by volun- tary dealings or by the exercise of compulsory power under sec. 51 (xxxi). It has been held that it embraces the property of the transferred State departments which became vested in tlie Commonwealth under sec. 85.^ The question of the nature of the power thus granted to the Commonwealth Parliament is of great importance. In the first place, does it constitute the Parliament the sole authority competent to exercise legislative power for such places, and remove them from the jurisdiction of the States, except so far as the Constitution has elsewhere continued temporarily the State authority ? In the United States, exclusive legislative power over a place imports exclusive executive and judicial power also — " territory so placed becomes as extraneous to the State as if it were held by a foreign government." Or is it merely a power to enact such special legislation in respect to such places as their particular circumstances may appear to the Commonwealth Parliament to require, leaving them otherwise under the general legislation and jurisdiction of the State ? In the case of R<'x v. Bamford- it was assumed that the former Avas tlie true inraning oi' the section. But it was lu'ld that the preservation of the operation of State laws, until the ^A'e.c V. Bnmford, (1901) 1 S.R. (N.S.W.) WM. ^=(1901) 1 S.R. (N.S.W.) :«7. 290 THE COMMONWEALTH OF AUSTRALIA. Commonwealth Parliament otherwise provides (sec. 108), applied not merely to the substantive law, but also to the jurisdiction of Courts and the powers of the Executive of a State ; and that consequently a Court of the State of New South Wales had jurisdiction to try a person charged with an offence committed in a Post Office in New South Wales. " ii. Matters relating to any department of the public service tlie control of which is by this Constitution trans- ferred to the Commonwealth." This must include departments which are transferred under the powers conferred by the Constitution. It follows of necessity that where the administration of a State de- partment is taken over b}^ the Commonwealth, the legisla- tive control of the States should cease, and this appears to be the object of the provision. It does not imply that matters relating to new departments of the Commonwealth {e.g., External Affairs, Treasury, or Home Affairs) are not within the exclusive power. " iii. Other matters declared by this Constitution to be within the exclusive power of the Parliament." This leaves at large the question what matters are under the Constitution within the exclusive power of the Com- monwealth. The question arises mainly in relation to commerce, and it falls again to be considered in connection with the doctrine of " the immunity of instrumentalities." It is obvious that prima facie the powers committed to the Commonwealth in respect to the organization of its own government are from their nature exclusive — they never did belong to the States, and no grant of " concurrent " power to the States can be inferred from a grant of power to the Commonwealth. In addition to the provisions of sec. 52 (1) in respect to places, there are some other sections of the Constitution which more unmistakeably constitute the Commonwealth LEGISLATIVE POWER OF THE PARLIAMENT. 291 the sole governmental authority over the territory with which they deal. Sec. Ill empowers the Parliament of a State to surrender any part of the State to the Common- wealtli ; upon such surrender and tlie acceptance thereof by the Commonwealth, that part of the State becomes subject to the exclusive jurisdiction of the Commonwealth ; and by sec. 122 the Parliament may make laws for the government of such territory or of any territory placed by the Crown under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. [292] CHAPTER III. THE EXECUTIVE POWER OF THE COMMON- WEALTH. Sir William Anson introduces the subject of his second volume on the Law and Custom of tlie Constitution by the observation that " In every political society there must be some person or body which acts on behalf of the whole, which represents the state as dealing with other states, which represents its collective force and will in maintaining amongst its own citizens the rules which the society has made or accepted for the preservation of order and the promotion of the public welfare." In the liistory of Aus- tralia the want of such an authority to speak and to act for the whole was as potent a factor in producing union as the absence of a common legislative power. The authority must be continuous, and not occasional ; it must be capable of prompt and immediate action; it must possess knowledge and keep its secrets ; *it must know discipline. In a word, it must have qualities very different from those which belong to the large representative and popular bodies wliich in modern times exercise legislative power. It is cliaracteristic of our methods that there has been small attempt to analyze the nature of the threefold divi- sion of governmental functions which we recognize. When THE EXECUTIVE POWER OF THE COMMONWEALTH. 293 the distinction was being established, men were content to reason that this particular power belonged to the King in his Council, that to the King in his Courts, and that other to the King in Parliament. It was only after the lines of action were settled in England that men began to analyze for the benefit of others who had their own constitutional arrangements to make. The supremacy of Parliament has generally made it unnecessary to consider the distinc- tions with scrupulous accuracy, and the existence and undoubted validity of a number of anomalies has kept us from over i-efinement. It is for the King to put tlie law into operation and to admonish his subjects that they keep it ; to execute the law by bringing offenders to justice, by maintaining and supporting Courts of justice, and by carry- ing out the judgments of those Courts. On the other hand, the King may not alter the law, may not make an offence where none is, may not establisli new penalties or novel tribunals. These matters belonof to the Parliament. Such are the lines upon which the distinction between executive and legislative power has been founded. The typical execu- tive officers have been the slieriff' and the constable. But there is nmcli more in orovernment than mere execu- tion of the law, whether enacted or unenacted; just as there is more in liuman life than the creation of legal relations. The state is a going concern ; it has affairs wliicli must be managed with prudence and judgment and whicli are not necessarily related to law in any other sense than that in which all conduct may be bounded by legal restraints. It is perfectly true that a very great part of this business of the state is regulated by law more than is the like business of private individuals ; as an owner of property and as an employer of labour the state sets rules to its agents, and to a very great extent, in Australia at any rate, these rules are not mere matter of internal arrangement, but are matters of 294 THE COMMONWEALTH OF AUSTRALIA. definite legal right and duty cognizable in Courts of law. But were those laws directinor and controlling the manage- ment of the state affairs repealed, the business would not itself come to an end ; it would simply have to be carried on under conditions (to parody a once famous saying) of greater freedom and more responsibility by tlie agents of the state. In modern and settled times it is the conduct of the business of the state which men mean by government, the execution of the law is assumed as a thing of course ; and the term " executive " has seemed little apt to describe functions which are so far removed from justice and police. Sir G. C. Lewis sucjo-ested that the term " administrative " would serve better to indicate the " stewardship " or " man- aofement " of government. In speaking of the Executive Government, then, the term " Executive" must be understood in a very broad sense ; and we are not to expect a complete statement of the functions of the Government in a legal instrument. For more than one reason Statutes defining the Constitutions of the Colonies have been almost silent on the subject of the powers as of the organization of the Executive. In the first place, the legislative power has included the power of making full provision for the execution of the law. Secondly, a large measure of executive power resides in the prerogative of the Crown, and has been conferred through prerogative acts and not by Statute, lest thereby the prerogative should be pre- judiced. Finally, the organization of the Government, and the relations of tlie Ministry and Parliament in our system, are a very type of matters which are not under the continual direction of organic laws, but are freely organized as utility has suggested, or may suggest, within the ultimate bounds of law. The attempts which have from time to time been made to reproduce in terms of law for the Colonies some of tlie conventions of the British Constitution — as in the rela- THE EXECUTIVE POWER OF THE COMMONWEALTH. 295 tions of the two Houses of the Legislature as to money bills — have not been very successful. Constitution Statutes for the Colonies, and even the prerogative instruments which accompany them, do no more than hint at the Cabinet System, and the delicate relations of the Crown and Parlia- ment. Tliey differ from the British Constitution on which they are modelled, principally in this — that they do hint at the Cabinet System. They contain some provisions which imply a Parliamentary Executive ; they speak of " officers liable to retire upon political grounds," even of " responsible Ministers of the Crown." It would be impossible to frame a Constitution upon the law of Victoria such as the Con- vention at Philadelphia in 1787 framed upon the law of the British Constitution as expounded by Blackstone. The first duty of the Executive appears to be to represent the Commonwealth whenever that is necessary, whether as a political organism, or as a juristic person making contracts and appearing as a party in Courts of justice. For this, no express power appears to be necessary ; it follows of necessity from the establishment of the Com- monwealth as a new political community. But a very serious and important question has arisen as to the extent of this representation. The Colonial Office^ has laid it down that the sphere of the Commonwealth Executive is measincd, not by the powers committed by the Constitution to the Commonwealth Parliament, but by the responsibility of the Commonwealth considered as a single political community, a responsibility which, according to this view, extends to all matters occurring ^vitll!n tlic Commonwealth and afiect- ing external conmuniities. Thus, where the question is as to the observance of a ti-eaty, the Commonwealth Executive is the authorily to which alone the Imperial Government can address itself, without regard to whether *Cf. Keith, RtupowiibU Govtrnmtnl in the Dominionx, pp. 170-171. 296 THE COMMONWEALTH OF AUSTRALIA. the Commonwealth Parliament is, under the Constitution, the proper authority to make laws upon the subject, or whether the Commonwealth Executive has any power to do more than address communications to the State Executive. It would follow that in the Imperial Conference the Commonwealth Executive alone can appear for any part of Australia, though the matters under discussion (e.g., uniformity or recognition of professional qualifications) are not, as a matter of constitutional law, within the sphere of the Commonwealth Government at all. This matter has been considered under the head of The States, and it is there suggested that the analogy to international law and the relations of independent states is not sound. In the next place the Constitution itself declares that the executive power extends to the execution and maintenance of tlie Constitution, and of the laws of tlie Commonwealth (sec. 61). The most common function of the Executive Government of the Commonwealth is, of course, to execute the laws made by the Commonwealth Parliament, or, in the case of those Departments of Administration transferred from the States, to carry out the laws of the States until legislative power thereon is exercised by the Parliament. It cannot, however, be conceded that the Commonwealth Executive has nothing to do with the subjects of Commonwealth legis- lation except to carry out its own legislation upon them. In relation to all such matters, the Commonwealth Execu- tive does, it is submitted — and to this extent an unqualified adhesion may be given to tlie views of the Secretary of State — represent the Commonwealth and all the States to the outside world, whether there has been any Common- wealth legislation or not : the Commonwealth Government has become responsible therefor, and if State autliority J THE EXECUTIVE POWER OF THE COMMONWEALTH. 297 continues to be exercised over the matter, that is merely because tlie paramount authority permits.^ Furtlier, the Constitution recognizes, if it does not estab- lish, the Cabinet system in the Commonwealth, and the responsibilities of the Executive extend to the consideration of the subjects committed to Parliament, and, if need be, to tlie initiation of legislation upon them. This may not be unimportant in relation to the power to issue Commissions of Inquiry. The power to execute and maintain the Constitution does not mean that the Executive Government may do all acts necessary to carry out any provision of the Constitution ; it must be construed, like everything else in the Constitution, by reference to the established principles of English law, which will in many cases point to the Legislature or the Judiciary as the appropriate organs of action. But where a power or duty committed to " the Conmionwealtli " is of such a kind as is according to common law exercise- able by the Executive, the Commonwealth Executive is empowered to take such action as the common law allows. Thus, the provisions of sec. 119 impose on the Common- wealth the duty of protecting every State against invasion, and, on the application of the Executive Government of the State, against domestic violence. It will be for the Com- monwealth Executive to take proper measures to carry out this duty, by the application of the forces at its disposal, or by getting from Parliament such otlior means as may appear to be necessary. In pursuance of its duty to maintain the Constitution and ^ Where, liowever, the matter is actually governed by hiw (State or Imperial), which designates the State Executive as the authority for carry- ing it out, the Coiniiionwealtli Executive cannot, independenth' of legi.^la- tion by the Commonwealth Parliament, substitute its own action for that of the State Executive. See Ex parte Gerhard (No. 3), (1901) 27 V.L.R. 655; M'Kelvey v. Mtivjher, (1906) 4 C.L.R. 205. 298 THE COMMONWEALTH OF AUSTRALIA. the law of the Commonwealth, the Executive may, without any further statutory authority, take whatever measures are ordinarily allowed to the Executive by the common law, to protect every branch and Department of the Federal Government in the performance of its duties. The nature and extent of this power is well illustrated by two American cases — III re Neagle^ and In re DehsP- In Neagles Case, information had been received by the Law Department of an intended attack to be made by one Terry upon Justice Field, Circuit Judge of the United States for California, and Neagle w^as ordered as Deputy- Marshal to attend the Judge for his protection. The antici- pated attack was made, and Neagle shot Terry. Thereupon an information was sworn in the State Court against Neagle, who was arrested. He sued out a writ of Jtabeas corpus in the Federal (Circuit) Court, where it was held that he was in custody for " an act done in pursuance of a law of the United States," and that this custody was in violation of the Constitution and laws of the United States. It was accord- ingly ordered that he be discharged. On appeal to the Supreme Court, it was objected that there was no Statute authorizing such protection as that which Neagle was instructed to give Justice Field ; but it was held, neverthe- less, 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 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 tlie powers confided to the Government of tlie United States, but belongs exclu- sively to the States, Mr. Justice Miller said : — " We hold it to be an inconti'overtible principle that the Government of tlie United States may by physical force exercised through 1(1889) 135 U.S. L -(1895) 15S U.S. 564. THE EXECUTIVE POWER OF THE COMMONWEALTH. 299 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." The especial significance of the case lies not in the ques- tion of the guilt or innocence of the defendant — i.e., whether there was any justification under the law of California — but in the determination that such a matter could not be left to the State laws and tribunals. The duty of the Federal Executive to protect its officers was an inherent duty not requiring any Statute for its foundation ; and the Legisla- ture having committed to the Courts the power of issuing the writ of habeas corpus, that remedy was available for the support of the Executive. In Re Debs} it was held tliat the Executive, having the duty of protecting the mails and inter-State commerce, might, in case of interference with transit, deal with the emergency either by the use of force, or by the prosecution of offenders in a criminal Court, or by applying to the Court for a writ of injunction. All these means were open to it, and it was a matter of executive discretion which of them should be employed. The express provisions of the Constitution on the subject of the executive power of the Commonwealth, and the declar- ation that this power, vested in the Crown, is exerciseable by the Governor-General as the King's representative, appear to avoid adifhculty that has arisen in ri^speet to the source and extent of the Executive power in tlu; Colonies. Legislative power was conferred by the Coiistitutiun Acts upon an authority which it was the principal object of tho.se Acts to establish and do tine. Of Executive power in general nothing was said, though a few specific powers were conferred upon the Governor. The undoubted legal position being tiiat the 1158 U.S. 56i. 300 THE COMMONWEALTH OF AUSTRALIA. Executive powers of the Crown were applicable in the Colony, the question arose — by what authority were they committed to any officer there ? Prima facie, the answer would be that the Governor represents the Crown in the Colony, and could in the name of the Crown make what- ever provision the Crown itself could make. But as against this, there was the repeated declaration of the Privy Council that the Governor was no Viceroy, no general delegate, but merely the grantee of the special powers contained in the prerogative instruments governing his office.^ Accordingly, in the case of Toy v. Musgrove'^ the majority of the Supreme Court of Victoria held that tlie Executive Government of Victoria had no power to exercise the Crown's prerogative (which was assumed to exist) of excluding aliens from the Colony, no grant of such a power being found in any of the constitutional instruments from which it was held that the Governor's only powers — apart from Statute — were derived. Higinbotham C.J. dissented, holding that the Executive power in the Colony w^as not dependent on the .special grants contained in the Letters Patent, Commission, and Instructions, and that the Executive Government in Vic- toria had " a legal right and duty, subject to the approval of Parliament, and so far as may be consistent with the Statute law and the provisions of treaties binding the Crown, the Government, and the Legislature of Victoria, to do all acts and make all provisions that can be necessary and that are in its opinion nece.ssary or expedient for the reasonable and proper administration of law and the con- duct of public affairs, and for the security, safety, or welfare of the people of Victoria."^ The view of the Chief Justice appears to be confirmed by Mr. A. Berriedale Keith, of the ^Cf. Cameron v. Kyte, 3 Knapp 3.32; Hill v. Bujge, 3 Moore P.C. 476. =(18SS) U V.L.R. 3-4y. =76., at p. 397. THE EXECUTIVE POWER OF THE COMMONWEALTH. 301 Colonial Office, who may perhaps be assumed to express the official view when he says that the Letters Patent " delegate to him (i.e., the Governor) in the fullest manner the general executive power of the Crown in tlie Colony by directing him to perform all the acts pertaining to the post of Governor in the Colony " (p. 29), and that " the powers assigned to the Governor cover all the ordinary executive authority of the Crown " (p. 30).^ This view clearly involves the existence as a matter of constitutional law of a distinction between the powers of a local Executive and the executive powers of the King as the head of the Imperial Government, and this distinction was in fact emphatically stated by the Chief Justice. It can be no part of the general executive power of a Colony or of the Commonwealth to declare war or make peace, to annex or cede territory, or to make treaties with foreign Powers. It may be a difficult question to determine as to some powers, either from their nature, as for example, the admission or exclusion of aliens, or their history, as the chartering of corporations, coinage, and tlie Post Office — whether they belong to the one head or the other. The question whether the pardoning power and the power to appoint a Deputy * Keith, Reaponsible Government in the Dominions. The Chief Justice was also of opinion that this general power of the Governor as local Executiva was not derived by ilelegation from the Crown, but was ini])lied in the Constitution Statute and Conslitulion Act, and that tliis statutory authority obscurely but sufficiently established that it was exeroiseable only through his Ministers. In otlu;r words, tliat responsil)le government with its incidents was established by Statute. It followed that the Letters Patent or other prerogative instruments conferring either generallj- or special!}' any of the local executive [jowers were superfluous and improi)er, and any instruc- tions or directions as to tiie mode of exercising these powers were contrary to law. In both these matters tlie majority of the Supreme Court was against the Cluef Justice ; and Mr. Keith's position in no way involves the acceptance of the Chief Justice's opinion on these matters. The Chief Justice's views on responsible government are also set out in a memorandum addressed by request to the Secretary of State (Lord Knutsford), which will be found in the Mtmoir of Gtorge Hiijinbothcvn, by Edward E. Morris (Macmiilans). 302 THE COMMONWEALTH OF AUSTRALIA. belong to the Governor-General as part of the executive power and without special grant, has been referred to in considering the office of Governor-General, where also arc considered some questions as to tiie relation of the statutory- powers of the Governor-General under the Constitution, and the powers committed to him by the special grant of the Crown. [303] CHAPTER IV. THE JUDICIAL POWER OF THE COMMONWEALTH. The Constitution, which has committed legislative and executive powers to their appropriate organs, vests " the judicial power of the Commonwealth" in Courts (sec. 71). It thus becomes necessary to determine what is meant by this expression, since the separation of powers in the Con- stitution imports that whatever is included in the grant, may not be exercised except by tlie Courts as constituted under the Constitution,^ and that no power can be exercised by the Courts which is not within the ambit of the judicial power. Definitions of judicial power, as of legislative and execu- tive power, abound,- and the general nature of each is under- stood. But most of the definitions of judicial power are themselves little more than re-statements of the term itself. That the judicial power 'adjudicates,' that it 'administers and interprets the law,' that it ' declares the law,' that it decides disputes and contests — all these statements either tell us no more than does the expression 'judicial power ' or state what is not true exclusively of the judicial department. ^ Kilhotirn V. Tho7)ipson, 103 U.S. 1!)-'; Uuddarl Parker v. Moorhead, (1909) 15 A.L.K. at p. 249, per Griffith C.J. ^■J^A number are to be found in Cooley's Constitutional Limitationa, Chapter V. 304 THE COMMONWEALTH OF AUSTRALIA. Laws impose duties upon and establish rights in persons who fall witliin what Bentham calls the " dispositive facts," that is to say, facts upon which the rights and duties are conditioned. Whether a particular person comes under the duty or has the right, is a question which arises when it is sought to enforce the duty against him or when he claims the right against some other person or persons. In an orderly system of government, the application of the " sanction " of the law is preceded by an inquiry, wdiich investigates the truth of the facts, interprets the law applic- able to those facts, and proceeds to a declaration in accord- ance with the law so interpreted upon the facts as found. Tlie declaration is then operative and enforceable in accord- ance with its terms, pronouncing the penalty, aw^arding the claim, commanding or forbidding something to be done, declaring the right, or dismissing the proceedings.^ But in any case, it is a juristic act establishing certain definite legal results. This investigation is a judicial proceeding and the determination a judicial act. One other feature must be added. Acts of authority purporting to establish legal relations — whether the imposi- tion of a duty or the declaration of a right — are either provisional and tentative, or conclusive and binding. It is characteristic of the determinations of Courts, acting in their jurisdiction, that they are conclusive and binding until nullified or amended hy the appropriate revising authority (if any), and everything done under them is valid and lawful. In the English system it is a fundamental principle that acts of an executive or subordinate legislative authority have not this character ; we do not recognize the doctrine, so well established in French law^ that the acts i"The nature of the final act determines tlie nature of the previous inquiry," per Hohnes J, in Preiitis v. Atlantic Coa-^t Line, 211 U.S. at p. 211, cited by Isaacs J. in Hiuldart- Parker v. Moorhead, (1909) 15 A.L.K. at p. 260. THE JUDICIAL POWER OF THE COMMONWEALTH. 305 administratif, as such, is valid and operative until it is revoked by competent authority. Consequently, as a general rule, the validity of any executive order or act depends, not on the decision of the executive body or officer on the facts or the law, but upon whether a correct view has been taken of the law or the facts. In all such cases, therefore, where it is necessary to invoke the Courts to give effect to the executive act, the whole question of validity is at large, and if tlie executive act itself is tlie invasion of any right in the citizen, that citizen may seek his remedy against the officer or other authority, unprejudiced by the view that the officer has taken of his duties or powers. There are, however, a number of matters in which deter- minations of bodies, not Courts, have been made binding and conclusive in particular cases.^ Many matters — and in modern law, an increasingly large number of matters — are committed to the discretion of authorities of one kind and another, and in such cases the authority acts or refrains from action upon an exercise of its own judgment and upon its own determination of facts. This power may be one whicli is committed to the discretion of the donee in such a way tlutt he has an " arbitrary " power over the subject matter, exerciseable at his will.- Or the power may bo one which approximates to the action of Courts, not merely in the decisory character of the act itself, but also in tlie manner of its exercise — the discretion may be a "judicial discretion," surrounded by these safeguards which belong to the proceedings of Courts — a hearing of persons affected, an autliority unbiassed by interest, and so on."' In either case, though tlie act may not be challenge- able collatcrallv, it is subicct to the s.ur.o control which is 'Cf. Hf.c V. Woodho7isp, (1906) 2 K.B. at p. 535, per Fletcher Moultoii L.J. ''Cf. A'. V. Armhl, (1906) 3 C.L.K. r).)7 ; see per Barton J. at p. 575. ='Cf. Sharp V. Wakefield, (1S91) A.C. 173. l7 306 THE COMMONWEALTH OF AUSTRALIA. exercised by the superior Courts over inferior tribunals by means of the writ of certiorari. While the Court will not entertain an appeal from the discretion of the authority so as to substitute its own determination for that of the authority, it will inquire whether the circumstances have arisen which call for the exercise of the discretion, i.e. on whicli its "jurisdiction" depends,^ (unless, as may happen, those circumstances also have been committed to the deter- mination of the authority in question),- whether the authority was competent and properly constituted, whether (in the second class of case) its proceedings were conducted in a way consistent with the due exercise of the discretion accordins; to its nature : and whether its action was based upon facts excluded by law from its consideration or the failure to consider facts which by law it should have considered.'^ If the Court hnds that the discretion of the authority is vitiated in any of these ways, it may " quash " or annul the act unless the Legislature lias unequivocally deprived it of this power.-* These acts arc frequently spoken of as "judicial."'' In the tirst case, the use of the term is explained by the analogy to judicial proceedings which arises from the con- clusiveness of the determination, and by the fact that in the English system, this conclusiveness, whicli belongs to the findings of Courts, rarely attends the findings of executive authorities. In the second case, there is of course a closer analog}^ — the procedure approximates to that of Courts, and the use of the term "judicial" in this connection is pro- ^See Colonial Bank of Audrala>iia v. Willan, L.R. 5 P.C. 417, 442. ^See I'/ie. Queen v. Covimissioners of Income Tax, 21 Q.B.D. 313, at p. 319. »See Sharp v. Wahefidd, (1891) A.C. 173, and case.s there cited. *E.G.. see Ex parte Bihger, The Times, July IStli, 1909, probably to be reported iu (1909) 2 K.B. ^See generally per Fletcher Moulton L.J. in 7?. v. Woodhoiise, (1906) 2 K.B. at p. 535. THE JUDICIAL POWER OF THE COMMONWEALTH. 307 inoted by the fact that many of the functions in question belonged to Justices of thy Peace, who of course exercised an important judicial power in the administration of criminal justice, and who also performed a number of non- discretionary, " ministerial " acts, wherein tlieir judgment was not conclusive, and which had to be distino-uished from their other acts by the fact that tlicy miglit be challenged collaterally in actions brought for acts done under tliem. It will thus be seen that in Encjlish law, the test to which an official act is submitted for the purpose of ascer- taining its " judicial " or " non-judicial " character, is whether it is a determination of the matters involved in it. The position is put very clearly b}^ Palles C.B. in his judg- ment in Rex v. Local Government Board ^ : — " I have always thouglit that to erect a tribunal into a Court or juris- diction so as to make its determinations judicial, the essential element is that it shall have power by its determinations within jurisdiction to impose liability or affect rights. By this I mean that the liability is imposed or the right affected by the determination onl}-, and not by the fact determined, and so that the liability will exist or the rio-ht be affected althout^h the determination be wrong; in law or in fact. It is otherwise with a ministerial power. If the existence of such a power depend upon a contingency, although it may be necessar}?- for the officer to determine wliether the con- tingency lias happened in order to know whether he shall exercise Ins power, his determinations do not bind. The happening of the contingency may be questioned in an M190-) 2 If. Rep. at p. 37.'?. The opening words of the passage are cited by Isaacs J. in Hnddart Parker v. Moorhc^d, (1909) 15 A.L.K. at p. 260. See also Orotnvdd v. Burwell, (1899) 1 Lord Raymond, p. 465, per Lord Holt. Cf. Field J. in the Sink'nuj Fund Cast'*, 9 Otto, at p. 761 :— " When- ever an Act undertakes to deterniine a question of right or obligation, or of property, as the foundation upon which it proceeds, such Act is to that extent a judicial one, and not the proper exercise of legislative functions." 808 THE COMMONWEALTH OF AUSTRALIA. action brought to try the act done under the alleged exercise of power. But where tlic determination binds, although it is based on an erroneous view of law or facts, then the power authorizing it is judicial. It may be proper to state, of course, that the correlative proposition is not true. A judicial act by an inferior Court does not always bind even the ps.rties to it. To do so, it must be witliin jurisdiction, and therefore if the determination be as to the limits of its jurisdiction, and be erroneous so that the act is in excess of jurisdiction, it will not bind." It may be added that the word " ministerial " in this passage is clearly used as equivalent to " administrative " or " executive," and not in the narrower and more common sense which excludes discretion. It is clear that the mere giving of an opinion is not a judicial act,^ even though it be given by a Judge after solemn argument;^ nor is a mere report or re commendation upon wdiich somebody else may or may not take action. The person by whom the function is performed does not affect its nature. A branch of tlie Legislature investio-atino- a breach- of privilege, or conducting an inquiry into the conduct of a member with a view to his expulsion, or inquiring into tlie validity of an election — these beino- matters in which it lias authority, and conclusive autliority — is engaged in judicial duties. A proceeding before a Court Martial, an executive authority with power to award punishments, is strictly a judicial proceeding.^ The mere power to inquire, and to require testimony upon an inquiry, is not judicial power. Inquiry is inci- dental to judicial power, but it is equally incidental to other ^i?. V. Sheahan, (1S9S) 2 LR. 683. -Cf. Ex parte the Countt/ Couiiril of Kent, (1891) 1 Q.B. 725. "Dawkiiis v. Loi-d Rolceby, L.R. S Q.B. 255. THE JUDICIAL POWER OF THE COMMOXWEALTH. 309 powers of o-overnnient.^ Tlie Executive and the Legislature alike are entitled to seek information to jruide tlieni in the exercise of tlieir powers ; and that which is non-judicial when exercised without coercive power does not change its nature when the information can be required.- It is unnecessar}' to refer particularly to the cases in which, in England and the Colonies, inquiries are conducted by Royal Connnissions or Parliamentary Committees ; their light on the subject is obscured by the fact that Royal Commissions, in England at any rate, are in general with- out compulsory jDOwers, that the Governmoiits ai'e plenary governments, and that there is no formal separation of powers. But in the United States it is establislied tliat the extensive inquisitorial powers conferred upon such bodies as the Inter-State Connnerce Connnission are intra vires, as incident to tlieir administrative duties.^ Nor do those incjuiries become judicial because the course of them may disclose the commission of some offence,^ or involve the investigation of some matter of private right. Tlare are, however, opinions of eminent lawyers whicli suggest that an inquiry instituted by the Crown for the purpose of ascertaining whether an offence lias been committed and by whom, or whether an}^ penalty or forfeiture has been in- curred, is an invasion of the judicial power of tlie Courts even though the incjuiry is not for tlie purpose of awarding ' Huddnrt Parlc.r v. Moorhead, (1909) 15 A.L.R., at p. 250, per Griffith C.J. ; at J). 2.58, per O'Connor J. In re Cliapvian, 1G6 U.S. (JGS. Cf. in- quii ies of Select ('oniniittees in England upon Private Bills and tlie pre- liminary inquiries in tiie case of provisional orders. A', v. HaslUKjs Board of Health, (1.SG5) 6 B. & S. 401. In re. Local Governvient Board, (ISSo) 16 L.U. (Ireland) I.IO ; IS L.R. (Ireland) 509. "Glonijh V. Lmhy, (1904) 2 C.i.. It. \'.Vd. There is a Commonwealth Royal Commixsionn Act (No. 12 of 1902). "Inter-State Commerce Commis'^ion v. Brinison, 154 U.S. 447. *flale V. Nnd-el, 201 U.S. 44 ; Cf. Cock v. A.-G. and another, (1909) 28 N.Z.L.R. 405, at p. 425. 310 THE COMMO:^nVEALTH OF AUSTRALIA any legal penalty,^ and the Supreme Court of New Zealand has very recently (May, 1909) decided this.^ If this be so, it would follow, in a system where there is a legal separation of powers, that such an inquiry could not be committed to any organ save that to which the judicial power is entrusted under the Constitution. Consistently with this, the Supreme Court of the United States has held that an inquiry by the Legislature into the conditions under which a compromise of legal claims was effected in an insolvency, being an inquiry into a matter which could only be effectively dealt with by the Courts, was ultra vires so far as concerned any attempt to compel the attendance or testimony of un- willing; witnesses.^ The question of the legality of Executive .inquiries has come under the consideration of the HiHi Court of Aus- tralia in two cases, where they have been challenged as an exercise of or interference with judicial power. In Clough V. Leahy, "^ the Governor of New South Wales had issued a Royal Commission to inquire into the formation, constitu- tion, and working of a particular industrial union, to ^E.rf. Sir Jaine'5 Scarlett on Municipal Corporations Commission, Animal Herjiater 1833, p. lo£ ; Sir G. J. Turner, Sir R. Bethell, H. S. K.eating, and J. E. Kenyon on Oxford University Commission, Sessional Papers 1852 (English), vol. xxvi., pp. 331, 337; Bethell and Fvenyon, ih. p. 341. The Opinion of the Law Officers of the Crown (Sir J. Dodson, Sir A. G. Cock- burn, and Sir W. P. Wood) does not disagree as far as inquiry into offences is concerned [lb. p. 338). See also The Case of Co)ninission>i of Inquiry, 12 Co. Rep., c. 31 ; Law Review (1851), vol. xv., p. 209; and Clark's Co7i^(ihi- tional Law, c. 12. -Coch V. A.-G. and another, (1909) 28 N.Z.L.R. 405. '^Kilbourn v. Thompson, 103 U.S. 192. ■^(1904) 2 C.L.R. 139. In Cock v. A.-U. (28 N.Z.L.R. 405) the New Zea- land Conrt while " not questioning the decision," is unable to agree with some of the reasons by which it was arrived at (p. 422). The Court con- siders that the examination as well as the determination of matters of right before extraorditiarj' triljunals is within the miscliief of the 42 Edward IIL c. 3, and the Act for the Abolition of the Star Chamber 16 Car. 1 c. 10 (p. 423). THE JUDICIAL POWER OF THE COMMONWEALTH. 311 consider whether it was an evasion of two Acts of Parlia- ment, wliether it hampered the Industrial Arbitration Court from doino- justice in disputes arising in the pastoral industr}', and whether any alteration of the law w^as neces- sary in this connection. On the prosecution of a witness for refusing to give evidence, it was argued, and held in the Supreme Court of New South Wales, that the object of the Couunission being solely to inquire into matters already adjudicated upon by the Arbitration Court, and over which that Court had complete power, the Roj^al Commission was " a usurpation of the jurisdiction of a Court lawfully constituted to deal with the same matter," and was illeoal. On appeal, the High Court hold that there was no warrant for saying that any iucpiiry of itself was unlawful, even tiiough it related to guilt or innocence, or to private right, and was held in public. In this case, of course, there was no formal division of powers to be considered, but the opinion of the Court is clear that the mere inquiry into guilt or innocence, even when backed by a power to compel testimony, is not a judicial proceeding, or a usurpation of judicial ])ower. In the case of Huddart Parker v. Moorliead} the ques- tion was as to the validit}'' of sec. 15 (6) of the Aus- tralian Industries Preservation Act 1906-7, giving power to the Comptroller-General of Customs, if he believed, or if he was informed in writing, that an offence had been com- mitted under that Act, to interrogate persons in relation thereto. The High Court lield that the pov/er of inquiry was not of itself judicial power ; that preliminary' in(|uiries of this nature in relation to criminal otlences had been held to be non-judicial, even when conducted by justices of tlie peace (Car V. Coleridge-): and that the provisions in question were intra vires as equipping that portion of the Executive M1909) (M..TJ. : ir, \.T..R. •_>41. "-1 B. k C. 50. 312 THE COMMONWEALTH OF AUSTRALIA. wliicli administered the Australian Industries Preservation Act with powers of effective inquiry, which were particularly needed in the administration of an Act of that kind, and were no more than was familiar in Acts in aid of the Administration, e.g., Customs, Audit, Census, Immigration Restriction (O'Connor J.). In the words of Isaacs J., the case was one of " mere investigation with a view to inform the mind of the Executive whether the law has or has not been observed, and if not, whether the nature of the con- travention is such as to merit further action." The section under discussion also provided that while no person was to be excused from answering questions on the ground that the answer might tend to incriminate him, liis answer should not be admissible in evidence aoainst liim in any "proceeding other than a proceeding for an offence against this part of this Act." It was contended that this provision showed that the power in question was really not in aid of executive but of judicial proceedings, and was in the nature of discovery, a process always treated as part of judicial power. On this the Court held that as there were no judicial proceedings pending, the proceeding was essenti- ally different from discovery in such proceedings. It is to this argument that the observation of the Chief Justice appears to be directed : " The exercise of this power {i.e., judicial power) does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not), is called upon to take action."^ O'Connor J. goes on to indicate a limitation to the power given by the section. He affirms that "when the Comptroller-General makes his requirement under sec. 15 (6) there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence wdien once it has been brought within the cognizance of the 115 A.L.R. at p. 2,50. See also O'Connor J. at p. 259. THE JUDICIAL POWER OF THE COM^NIONWEALTH. 318 Court. The power to prevent any .such interference by the Executive with ca case pending before th.e ordinary tribunals is undoubtedly vested in the Court by the Constitution."^ The determination of the nature of "judicial power" is, however, a part only of the problem as it presents itself under the Constitution. It does, indeed, show the limit of wdiat could belong, or be connnitted by the Parliament, to the Commonwealth judiciary, for " the judicial power of the Commonwealth " is necessarily limited by the essential nature of judicial power itself. But it does not follow that everything which is in its nature judicial, or every- thing; which, as beings itself a determination of some matter not to be impugned collaterally, English Courts have declared to be "judicial," is a part ol "the judicial power of the Connnonwealth," as that expression is used in sec. 71 of the Constitution. In construing the expression under consideration we naturally tuni to the cognate provision in the Constitution «f the United States, which declares that " the judicial power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish " (Art. III., sec. 1). But in dealin done.'' "Cf. Quick and Garran, p. 7-2 : — " The Legislature may over-iule a decision thougli it may not reverse it."' "(1903) S.R. (Q.) 261 ; L.R. (190G) A.C. 360. M1W4) 1 (\L.R. :;!)1. 316 THE COMMONWEALTH OF AUSTRALIA. sec. 71.^ Striking illustrations may be found in the United States, where the Supreme Court has held that Congress may commit to justices of the peace the trial of j^etty ofiences ordinarily punishable on sununary conviction,- or to State officers such functions connected with judicature as are not ordinarily committed to Courts of record,^ though the justices are not within the constitutional provision concerning the organization of Courts, and though federal judicial power cannot in America be vested in State tribunals. Illustrations may be found also in the Common- wealth Constitution itself. Sec. 47 commits to the House in which the question arises (until tlie Parliament otherwise pro- vides) all questions of disputed elections, the qualification of members, and the existence of vacancies ; and sec. 49, declaring the privileges of tlie Parliament, enables the Senate and the House to exercise respectively the power of punishing acts determined by it to be a breach of privilege. The power to establish Courts Martial under the Defence Acts is a 230 wer to create tribunals to exercise a function which is strictly judicial, as already pointed out.* Yet of these tribunals it is said in the United States that " although their legal sanction is no less than that of the Federal Courts, being equally with them authorized by the Consti- tution, they are, unlike these, not a portion of the judiciary of the United States Not belonging to the judicial branch of the Government, it follows that Courts martial must appertain to the executive department, and they are in fact simply instrumentalities of the executive '^Seee.g., MuiTuy V. Hohoken Land Co., 18 Howard 272, and the judgtiient of Cooley J. in Weinier v. Biinbury, .30 Micliigan 201, 212, Thayer's Cases in Constitutional Law, p. 120.">. •'Gallan v. Wilso7i, 127 U.S. 549, 552. ^Robertson v. Baldwin, 165 U.S. 275, 279. *Cf. Dawkins v. Lord Rohthy, L.R. 7 H.L. 7-44; S Q.B. 255. See Defence Act 1903, Part VIIL THE JUDICIAL POWER OF THE COMMONWEALTH. 317 power provided by Congress for tlie President as Com- mander-in-Chief to aid him in properly commanding tlie army and navy, and enforcing disciph'ne tlierein, and utilized under liis orders or those of his autliorized military representatives."^ Indeed, it must be admitted that there are many matters within the federal sphere wdiich are "judicial" for the pur- pose of a certiorari, and yet are not within the judicial power of the Commonwealth ; matters which may be com- mitted to an administrative authority with a power of deter- mination. The issue of licences, or other grant of privileges, seems primarily, at any rate, a matter for administrative rather than judicial action, and the fact that it has to be performed with a fair and just mind, and without bias, from interest or other cause, does not appear to alter its essential nature. That such proceedings, and many others to which certiorari is applicable, differ from the ordinary proceed- ings in Courts of justice is now admitted by the highest authority.^ '^'^^cy have, indeed, the " binding " force characteristic of judicial determinations — a man who had a licence granted b}'' a biassed or interested bench of justices, or one wdiich miglit be ([uashed on other grounds by certiorari, could not be convicted of trading without a licence. They seem, however, to be more properly described. as administrative acts to be performed in a judicial way. "^ Even in the United States, wiiere the matter rests not merely on the separation of powers, but also on the pro- vision that property shall not be taken without due process of law, it is held that some administrative determinations are operative and binding in the sense that the}'- may not 'Tliaj'er's LeailUnj Cases in Const itutioval Law, citing Winthrop's Militurif Law, pp. 5'2-.3. -Cf. li. V. Woodhouse, (1906) 2 K.B. 501, per Vaughan Williams L.J. at pp. 510.51.3, Fletcher Moulton L.J. at p. ol^'). '^ Itoyal Aquarium v. ParLmsou, (1S92) 1 Q.l'.. 4:51. 318 THE COMMONWEALTH OF AUSTRALIA. be impugned in any collateral proceeding, except as to the jurisdiction of the offieer.i This has gone so far as to hold that an administnitive process authorizino- the seizure of property, in satisfaction of some claim by the Government (as against a taxpayer or a public accounting officer), is itself conclusive; evidence of the facts recited, and of the authority, and so a complete authority for action taken under it.^ In this case the Court attached great importance to usage and history in proceedings for enforcing the debts in question ; and it is to be noticed that the Act of Congress did make provision for a direct review of the administrative determination. There are, again, some matters which are essentially political rather than legal, and are therefore primarily under the control of the political departments. The admission of aliens is one such matter ; the observance of ti'eaties and claims arising therefrom is another. It has been held in the United States that Congress may conunit to Executive officers the determination of the whole of the questions upon which the admission of an alien depends,^ or claims arising out of the provisions of a treaty.^ But where a Statute went further, and, besides committing to the Executive officer the ex- clusion of the alien, also authorized him to commit the alien to punitive imprisonment, it was deemed to extend beyond matters political, and to vest in the Executive a portion of ^See Goodnow's Administrative. Lcuv of the United Stales, p. 335. -Murray v. Hoboken, 18 Howard 272. "U.S. V. Ju Toy, 198 U.S. 25.'3, collect.? the principal case.s on thi.s subject. That case determines that the decision of tiie Executive is conclusive, even of alienage. The conclusiveness of the Execuiive determination, however, is dependent upon the supposition that there has been a hearing in good faith, and the Courts have to vindicate this right : Chin Yow v. U.S., 208 U.S. 8.- The Privy Council has held that at common law no alien h?is any- right to enter British territory, so that his exclusion becomes purely a political matter : JlIus(/rove v. Toy, 1891 A.C. 272. *U.S. V. Ferrara, 13 Howard 40. THE JUDICIAL POWER OF THE COMMONWEALTH 319 I I the judicical power of the United States; pro tanto it was void.^ Claims aojainst the Government itself are of this class — the Government mig-ht decline to recognize such claims at all, and, agreeing to recognize them, may fitly commit to its officers tlie investigation of such claims, and withhold them from judicial determination altogether.'^ The class of case here referred to — matters presenting a question lit for judicial determination and yet cognizable by an Executive authority — stands in a curious position in relation to the constitutional separation of governmental powers. Ex hypothesi, the question is not essentially one for judicial determination, as whether A has connnitted a crime or whether Blackacre belongs to C rather than to B. Not being of this nature, it would appear 'prima facie that the Courts could not have cognizance of it: that its determination is no part of the judicial power, and that it cannot be taken from the department of government to which from its nature it belongs. Where, however, the matter is capable of being presented in such a fashion as to be fit for adjudication, it is conceded that the Legislature may so submit it, if it pleases. P>ut if a submission is made, it must be complete, and a matter cannot be per- mitted to hover between the judicial and the executive or legislative departments of government. This is -well illustrated in the history of claims against the Government in the United States.-^ Such claims may be withheld from • Womj \Viii,i V. U.t>., IG.S U.S. "iiS. Cf. GrotnveU v. Burwell, (1699) 1 Lord Kiiymond at p. -idT : — " Where a man has power to inflict imprison- ment upon another for pnnishnient of his offence, tliere lie hatli judicial authority"' (per Lord Holt). ■'Hayburn's Case, 2 Dall. 409 ; U.S. v. Yale Todd, 13 Ho;\^ard 52?i ; U.S. V. Ferrani, 13 Howard 40; Gordon v. U.S., 117 U.S. 697. ''Haybnru's Case, 2 Dall. 409; U-S. v. Yale Todd, 13 Howard 52 a ; U.S. V. Ferrara, 13 Howard 40; Gordon v. U.S., 117 U.S. 697; U.S. v. Kkin, 13 Wallace 128. 320 THE COMMONWEALTH OF AUSTRALIA. judicial determination altoo-ether, and treated as a matter within tlie executive or legislative discretion; the Govern- ment cannot be sued without its own consent. Or they may be committed to the Courts for adjudication. But they cannot be committed to the Courts for investigation and report to the Executive or Congress, or subject to any revision by these departments. Nor can any condition be attached to the submission wdiich substantially derogates from tlie real determination of the issue by the Court. '^ In a number of other cases the American Courts have recognized that the Legislature may commit to administra- tive officers or departments the conclusive determination of questions of fact on matters concerning the services rendered by those departments to the public ; so far as their action depends upon the interpretation of the law the Courts have power to review the action f the considerations upon which the exercise of tliis power depends stand outside the present inquiry. It appears to be in the power of the Legislature to commit the ])erformance of administrative services to the uncontrolled discretion of any officer.^ In such a case, no right having been conferred, no right is infringed if the service or privilege is withheld. Even tlie constitutional prohibition in the United States of the taking of private property without due process of law does not mean that a judicial determination must in all cases precede executive action, even when such action is directed against the person or property of a citizen. There are many cases in which, either by common law or statute, administrative process is lawful. " Much of the process by means of which the Government is carried on and the order ^U.S. V. Klein, 13 Wallace 128. -Bates V. Payne, 194 U.S. 106; School of Marpietic Healing v. McAn- nnlty, 187 U.S. 94; Public Clearivij Hoimv. Coyne, 194 U.S. 497. 'E. V. Arndtl, (1906) 3 C.L.R. 557. THE JUDICIAL POWER OF THE COMMONWEALTH. 321 of society maintained is purely executive or administrative. Temporary deprivation of liberty or property must often take place through the action of ministerial or executive officers or functionaries, or even of private parties, where it has never been supposed that the common law could afford redress."^ In such cases " due process of law " in the American Constitution merely requires that the Executive authority sliall not have the final determination of the legality of its act ; that question must be left free for the judicial j^owcr. The same principle appears applicable in the Commonwealth — the Executive can have no power to determine conclusively the validity of its own act affecting the rights or liabilities of the citizen ; that determination belongs to the judicial power. It would be dangerous to attempt an exhaustive state- ment of the cases in which judicial functions may be exercised under the Constitution by authorities other than the Courts established or invested with jurisdiction under sec. 71. But, though there may be others than those mentioned above (disputed elections and qualifications of members; the grant and withholding of licences; the juris- diction of courts martial), it may be accepted as a general rule that tlie separation of poAvers in the Constitution imports within the range of Commonwealth action that the legalit}' of any governmental action, or the existence of any right, or tlie liability to any penalty, cannot be determined elsewhere than in the Courts : that determination is a part of the judicial power of the Connnonwealth. This limitation upon administrative action is well illustrated by the case of Executive inquiries. The Commissioner or officer ques- tioning a witness and requiring him to answer, could not be empowered to fine or imprison the recalcitrant witness. ^Pe7- Cooky J., Weimer v. Bnnhury, .30 Michigan 201 ; Thayer's Cases, p. 1203, cited witli appiovtil by tlie Supreme Court in Public Clearln;/ Home V. Coi/Hf, 19i U.S. at p. 509. Cf. GroenvtUv. Burwell, 1 Lord Raymond at p. 467. 322 THE COMMONWEALTH OF AUSTRALIA. Nor could such authorit}^ by any determination of its own, create, by the mere force of that determination, a duty to answer the questions. The question whether the witness is bound to answer the questions can only be determined by the Court which is invoked to impose the penalties, and which then has to determine for itself whether there was a duty or whether it was broken.^ The rule wliich assig-ns the judicial power of the Com- monwealth to Courts is thus a safeguard against arbitrary power more important tlian at first appears and importing restrictions upon the power of Parliament more extensive than is at first realized. It is not merely that the Legisla- ture may not constitute itself or any other body unauthor- ized by the Constitution, a Court of justice with functions which might be validly performed by a Court regularly constituted, i.e. the determination, after hearing, of rights according to law. If this were all that is imported by the separation of powers, it would be of small importance leo-ally, for a power of this nature is very rarely usurped by a Legislature. The temptation to which Legislatures are liable, to which American Legislatures have succumbed, and wdiich American Courts have met by the allegation of an invasion of judicial power, is to apply a new rule to past acts or events, or to deal with a specific matter of injur}^ or wrong independently of all rule. However mischievous and dangerous may be ex 'post facto laws and i^rivilegia, their very mischief lies in the fact that the}^ are something other than judicial acts ; that what should have been done in a judicial way and according to law has been done by the assumption of arbitrary power. The grant of judicial power ^ Interstate Commerce Commission v. Brimson, 154 U.S. 447 : Cf. Hiiddart Parker v. Moorhead, 15 Argus L.R. at p. 201, per Isaacs J. : " In neither case are liabilities imposcil or rights affected by any determination of tlie Coiiiptroller-Geiieral." Contrast the powers of examination possessed by the Commissioners of Bankruptcy under consideration in Boswell v. Impey, {1S23) 1 B. &C. 163. THE JUDICIAL POWER OF THE COMMONWEALTH. 323 to a special organ means that if the matter be one which from its nature is proper for judicial determination alone, the Let>-islature cannot deal with it otherwise, or authorize any- one, even a Court properly constituted, to deal with it except in the way of adjudication. Thus, as already seen, the ques- tion whether a witness has incurred a penalty for refusing to answer questions in an Executive inquiry is essentially one for judicial determination. It would be unconstitutional for the Legislature to constitute itself, or one of its committees, or the Executive body pursuing the inquiry', a tribunal for determining the question upon a regular investigation of the facts and a consideration of the law. But it would be none the less unconstitutional for the Legislature to enact without regard to either law or facts that the penalties had been incurred and should be suffered by tlie witness. In one .sense the act is not "judicial," for no Court could properly have acted in such a way. But it is an excess of legislative power and an invasion of the judicial power because it afi'ects to deal with an essentially judicial matter in a non-judicial way.^ On the same grounds, the power to adjudicate possessed l)y a Court imports the observance of principles of legal administration essential to the judicial office. The full extent of these principles cannot be easily determined ; but whatever they are, the}' n\ay not be interfered with by the Legislacure. The Constitution empowers the Legislature to regulate the incidents of judicature — this power is expressly conferred in sec. 51 (xxxix.) — but any interference with the essentials of judicial administration is a deprivation of judicial power and an attempt to rc(|uii-c the Court to aei in a non-judicial way. A judicial act may be said Id include actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceed- *See Hoke v. Hen-ierson, 25 Am. Decisions, at p. 6S7. 324 THE COMMONWEALTH OF AUSTRALIA. ings.^ It is an essential principle that no man shall be judge in his own cause, and that no person may be con- demned without an opportunity oi' being heard. On the same ground of interference with the judicial office are based the American cases which declare that enactments purporting to construe the law retrospectively are ultra viresr Tlie Legislature may declare generally who shall be competent witnesses, what shall be admissible as evidence^ and how proof may be made. It may even declare that cer- tain things shall be prima facie evidence of the matter in disi3ute, and thus aftect the burden of proof.'^ This, how- ever, is subject to tlie qualification that the matter proved must have a reasonable relation to the matter in issue and a real tendency to establish it — the inference must not be " purely arbitrary, unreasonable, unnatural or extra- ordinary."^ To go further and pre-determine the probative force of evidence so as absolutely to exclude a party from rebutting it would be an interference with the judicial office and void.'' For instance, the power of a Commerce Com- mission to pronounce upon the reasonableness of rates charged by a carrier cannot be made a conclusive determin- ation in a prosecution or other proceedings based upon the unreasonableness of the charge.'^ It is probably not con- stitutional for the Legislature to declare that the averment of an offence in an indictment shall be a sufficient proof tliereof, thereby throwing uj)on the defendant the entire burden of proving his innocence. 'Cf. Murray v. Hoboken Laud Co., 18 Howard, at p. 2S0 ; Cf. Blackstone, Commtntark'i, Bk. in. cap. 3, p. 25. "See Cooley, Gonditutioual Limitations, pp. L34-lo7. •'Ih. p. 526. Ttoph V. Cannon, 139 N.Y. 32 ; CoarU v. Mtrdiant, 103 N.Y. 143 ; and Meadowcroft v. People, 54 Am. St. Rep. .^47, 453. ""Marx V. Hawthorn, 148 U.S. 172 ; U.S. v. Klein, 13 Wallace. ''•Chicago Railway Go. v. Minnesota, 134 U.S. 418. An exception must, it would seem, be oKide in that limited class of administrative matters referred to on p. 318. [325] PART V -THE STATES. CHAPTER I. THE STATES : CONSTITUTION AND POWERS. As the Australian Commonwealth is a Federal Common- wealth, it is impossible to advance a step in the consideration of the Constitution without meeting- the States. In the structure of the Federal Government, the States or some part of their Governments, are a constituent part. They are the foundations upon wliich both Houses of the Parliament are built, and in the convocation of those Houses various incidental powers and duties are conferred upon the Governors and Legislatures of the States, while in all sorts of matters touchino- the Federal Govern- ment wliich must be the subject of some regulation, the laws of the States in their respective territories are applied to the subject matter, or the State Parliament is given power to make laws regarding them "until the Parliament otherwise provides." These matters and the miscellaneous relations between Commonwealth and State powers and riglits are dealt with in what appears to be their proper place. In the present chapter it is proposed to deal with matters peculiarly belonging to the States to 826 THE COMMONWEALTH OF AUSTRALIA. which it appears desirable to draw attention under a dis- tinctive title.^ By sec. 106 of the Constitution " the Constitution of each State shall subject to this Constitution continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State." This is the first and most significant of a group of sections which recognize the autonomy of the States, One of the many matters in which the Connnonwealth Constitution difi'ers from the Canadian Constitution is this — that while the British North America Act had to orcrunize both the Dominion and the Provincial Governments, the Australian Constitution had not as any part of its object the framing of a government for the States. The principle of State I'riie term "State" in the Constitution of the United States is used in various senses. It "sometimes means the separate .sections of territory occupied by the political society within eacli ; sometimes the particuhir government established by those societies ; sometimes those societies as organized into those particular governments ; and lastly, sometimes the people composing tliose political societies in their higliest sovereign capacity." (Madison's Virginia Report (1800), (Elliot's Debates, vol. iv. p. 547) cited by Story on the Constitution, sees. 4.34: and 208 n). In like manner, the Commonwealth Constitution uses the term, sometimes of terri- torj' (e.r/., sees 80, 92, 12.)), sometimes of the political society {e.g., sec. VI. of the Constitution Act), sometimes of the government of the political society or some appropriate organ thereof, sometimes of a juristic entity (e.g., sec. 51 (xxxi.) (xxiii.); and if it does not refer to the people of the political society '" in their highest sovereign capacity," it appears in some cases to descri 1)6 the people of the society as an economic unit (e.f/. , sees. 51 (ii.), 99), It happens more than once that in the same section the term is used in different; senses, and there is room for not a little doubt in some cases as to the meaning of the term— e.r;., in sec. 99, "preference to any State," and sec. 102, " preference or discrimination is undue or unreasonable or unjust to any State." In general it maybe noted that when the Con- stitution saves powers or grants powers or imposes positive duties, it specifically refers to tiie organ of State Government which has hitherto exercised or is intended to exercise tlie power or perform the duty in question, and when it withdraws an accustomeil power or imposes a pro- hibition it uses the term "State" ^s comprising all possible sources of action. (See, however, sees. 112, 118, 120). THE STATES : CONSTITUTION AND POWERS. 327 autonomy lias been carefully observed. In accordance with this principle the Constitution omits clauses of the Bill of 1891 which re(|uired that there should be a Governor in each State, and proposed that the Parliament of a State might make such provision as it thout^ht tit as to the manner of appointment of the Governor of a State, and for tlie tenure of his office and his removal from office. To the same principle is to be referred the elimination of the clause requiring State correspondence with the Colonial Office to be transmitted through the Governor-General. The Con- stitution does, no doubt, in some of its provisions^ assume that the States Constitutions will retain their present shape at least to tlie extent of having a Governor and two Houses of Parliament, and certain alterations of State machinery might cause inconvenience in the workino- of the Constitu- tion. But this does not affect the independent power of the State over its own institutions. The State Governors. — The Governor of a State con- tinues to be appointed directly by the Home Government, a fact which may be contrasted with the Canadian system whereby the Lieutenant-Governor of a Province is appointed by the Governor-General on the advice of the Dominion Ministers. Sucli a S3^stem is in accord with the extensive control exercised by the Dominion Government over the Provinces. It would be anomalous in Australia, having regard to the independent position assigned by tlie Con- stitution to tlie States. The Colonial Office correctly inter- preted the sciitiiiicnt of the States Governments when it said " there has been no indication that the States, whose contention it is that they remain sovereign States, would desire that their prerogative should be diminished, and the evidence of such sovereignty is in fact secured by making the appointment of Governor in the same manner ^Secs. 12 aud 15. 328 THE COMMONWEALTH OF AUSTRALIA. and on the same terms as prior to federation."^ The Colonial Secretary, however, thoiiglit there was much to be said for the Canadian system, and if the people of Australia were to desire to adopt a similar system in all probability the chano^e would be made. Tlie principal change that has come about in the position of the State Governor is that some reduction has commonly been made in his emoluments, and that in Sydney and Melbourne the necessity for providing an official residence for the Governor-General has sent the State Governor into quarters more in accord wutli the reduced scale of liis remuneration. From time to time demands are made that the office sliould be locally filled, either as a measure of economy by transferring the duties of the office (which it is assumed could be discharged without substantial interfer- ence with otlier duties) to the State Chief Justice, or, as a matter of sentiment, by the appointment of some person approved by the people or the Government. The only Government which has seriously interested itself in the matter is tliat of South Australia," to whom the Home Government replied in the despatch alreadj^ referred to. The proposal presented to the Colonial Secretary was merely that the Crown's choice should be confined to citizens of the State, but as the Colonial Secretary points out, that must mean in practice an appointment on the advice of the Ministry of the day. The practical difficulty then lies in the fact that the person recommended would almost inevit- ^C'ircular Despatch from Lord Crewe, October 9th, 190S. "See proceedings of the Conference of Premiers, Brisbane, Ma3% 1907 [Victorian Parliamentary Papers, 1907, No. 2.S, pp. 298-301). A South Australian motion "That in the opinion of this Conference the present system of State Governors siiouhl be alterod so as to reduce the cost of government to the States " was negatived, and a lesolution was carried (South Australia alone dissenting) " That the present is not an opportune time to alter the system of appointing State Governors." THE STATES : COXSTITUTIOX AND POWERS. .329 uhly be some one who was active in politics, even if the recommendation itself was not determined by political exigencies. In any case such a person could hardly inspire x;ontidence if he were called on to discharcre those rare but /lelicate functions of a Governor which peculiarly demand impartiality and aloofness from local political strife. The Letters Patent constitutino; the office of Governor with the instructions that accompany them, ditier hardl}^ at xill from those which applied to tlie Governor of a Colony before federation. There are, in fact, but two changes in substance. The first of these marks the chantjed relations to defence. The old Letters Patent and Commissions con- .stituted and appointed respectively a " Governor and Com- mander in Chief in and over the Colony of . . . and its ■dependencies." But the Constitution has transferred naval iind military defence to the Commonwealth (sees. 51 (vi.) and (JO), vested the command in chief of the naval and military forces of the Commonwealth in the (Jovernor-General (sec. •68), and forbidden the States, without the consent of the Parliament of the Commonwealth, to i-aise or maintain aiiv naval or military force (sec. 114). Consequently, the new Letters Patent and Commission issued for the States on January 1st, 1901,^ merely constituted and appointed respec- tively a " Governor of the State of . . . and its depen- dencies, in the Commonwealth of Australia." The Governor is no longer Commander in Chief, but it is surmised that his statutory position as Vice-Admiral is unatl'ected."^ The second matter in wliicli a chartre is made bv the Letters Patent is in respect to the exercise of the pardoning power. As there are now two governmental authorities whose laws may establish crimes and whose courts may 'See Appendix. -See the Courta of Vice-Admiralty .-l-'N 1S6.3, sec. 3, ami 1SG7, sec. 4. and the Colonial Courts of Admiralty Act IS'Jn, -sec. 10. 330 THE COMMONWEALTH OF AUSTRALIA. decree punishments, the prerogative of mercy must be sa granted as to preserve the independence of each, and a dis- tinction must be drawn between offences against Common- wealth laws and offences against State laws. This is provided for in somewhat ambiguous terms b}^ Clause IX, in the Letters Patent. The State Parliaments. — The key to the position of the States in the Constitution — as depositaries of the residuary powers of Government— is to be found in sec. 107, whereby, " Every power of the Parliament of a Colony which has become or becomes a State shall,, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the estab- lishment of the Commonwealth or as at the admission or establishment of the State as the case may be." It is not always easy to say what powers are withdrawn from the States or exclusively vested in the Commonwealtli, since- necessary implication is as potent as express provision. Express provisions of the Constitution exclude the States- from the exercise of legislative power with respect to- matters relating to any department of the public service the control of which is by the Constitution transferred to the Commonwealth Executive (sec. 52); from the imposition of duties of customs or excise or (with limitations) the grant of bounties (sec. 00) ; from impairing the freedom of inter-State trade, commerce, or intercourse (sec. 92) ; from raising or maintaining any naval or military force without consent of the Commo]iwealth (sec. 114), from imposing any tax upon Commonwealth property (sec. 114), from dis- criminatino; acrainst residents in otlier States (sec. 117), from coining money, or making anything but gold and silver coin a legal tender for the payment of debts (sec. 115). Implied restraints are a more difficult subject. Judicial THE STATES : CONSTITUTION AND POWERS. 331 decision has established the immunity of federal instru- mentalities from State power ;^ and in the case of TJte King V. Sutton'^ the High Court appears to have held that the power to make laws with respect to foreign commerce belongs exclusively to the Commonwealth Parliament by implication. An example of implied withdrawal of power from the States may probably be found in respect to the j)Owers enjoyed by them under various statutes to alter their territorial boundaries by mutual arrangement, a power which it is submitted could not now be exercised.^ Apart from the several restrictions upon State action which are associated with some power of the Commonwealth and are considered in relation thereto, the most important limitation expressly imposed on the power of the States is that contained in sec. 117 whereby — ■ " A subject of the Queen resident in any State shall not be subject in any other State to any disability or discrimina- tion which would not be equally applicable to him if he were a subject of the Queen resident in such other State." It is a general characteristic of the Constitution that as a rule it does not impose any restraint upon government except to further some federal purpose. Sec. 117 aims not at the protection of individunl right against go\'ei-innent interference, but at tlie prcNuution of discrimination by reason of residence in another State. The section aims at e(|ualit3', and if the laws of a State refrain fi-om disabling provisions and injurious distinctions atlecting the residents of other States, tlie section is fulfilled. It is, therefore, very ditt'erent in character from those provisions of the Constitu- 'See post, " Tlie Doctrine of the Iminuiiity of Instrumentalities." -5C.L.R. 789. •■•Cf. : Rhode. I.4and v. Massacliuatll--', (1838) 12 I'cters 7-.") ; Florida v. Georr,kt, 17 Howard 478 ; Virrfinia v. TeHiie>i.oee, (189.3) 148 U.S. 503. The power under the Goloiiial Bonnilnrics Act 1893 ia e.xpressly willulrawn (Comtitulion Art, sec. vni.). 332 THE COMMONWEALTH OF AUSTRALIA. tion of the United States wliieh forbid the States to pass any Act of Attainder, ex jyost facto hiw, or law impairing the obligation of contracts ; and from the Thirteenth, Fourteenth and Fifteenth Amendments to that Constitution, wliich, as protecting the States' own citizens, are essentiall}'' national, as distinguished from Jederal provisions. It may be com- pared with Art. iv., sec. 2 of the United States Constitution, whereby " the citizens of each State are entitled to all privileges and immunities of citizens in the several States " ; and the purpose of that clause as declared by the Supreme Court is the purpose of sec. 117 — " to declare to the several States that whatever those liglits, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be tlie measure of tlie rio-hts of citizens of other States within your jurisdiction."^ The " privileges and immunities " article in the United States Constitution is limited by a qualification which is not found in the Australian provision. What are secured in the United States are the privileges and immunities of citizens, and this has been construed as embracing merely those fundamental advantages which belono- of rio^ht to the citizens of all free governments. This means that it is still possible to discriminate between the citizens of the several States in matters standino- outside this rather vao-ue category.- In the Commonwealth we are saved from the perplexing questions that arise under the American pro- vision by the absolute prohibition of discrimination against residents in other States. '•' The substance of section 117 is, in short, that whatever privileges are conferred upon resi- dents of a State by its laws are to be taken to be equally ^Per Miller J., the S/awjh'ei- House Cases, 16 Wallace, 77. -.See the Slani/hUr Home C'ce.s-es, (1JS7"2) 16 Wallace 77 ; Corjield v. CoryeJl, (1825) 4 Washington C.C. .SSO ; Blake v. JWClang, (189S) 172 U.S. 239; M'Oready v. Virrjinia, (1876) 9-1 U.S. .SQL THE STATES : COXSTITUTIOX AND POWERS. 838 conferred upon residents of otlier States, and that every enactment conferring such privileges is to be construed as including residents of other States . . . The only way in which practical effect can be given to the provisions of sec. 117 of the Constitution is by allowing residents of other States to claim the same privileo-es as are formally o-iven to residents of the particular State."^ The foundation of the section is " residence." Tlie privi- lege can be claimed only by such British subjects as are resident in another State of the Commonwealth ; and the discriminations forbidden in the case of such persons are those which are based on residence outside the leo-islatino- State.- Thus, an absentee tax imposed by any State would be inoperative so far as regards re.sidents in another State. The same reasons would prevent the application of a special tax on conunercial travellers coming from otlier States in the Connnonwealtli. Death duties imposed at one rate in favour of resident, beneficiaries, and at a hi, 171. 348 THE COMMONWEALTH OF AUSTKALIA. states form part of" a very imperfect political society whose relations are governed by rules which, as between them, no Court can enforce and wliich in the last resort depend on the will and force of tlie individual states. No distinction is more constantly insisted upon than that between the merely political obligations of international law and the sanctions of the municipal law of a state. The British Empire forms a single state consisting of several communi- ties whose relations to each other are governed, not by international, but by constitutional law and by conventional understandings which must Ije consistent with that law and are ultimately limited by it. That constitutional law is municipal law — law in the strictest sense — binding, where its source is an Imj)erial Act, upon all authorities within tlie Empire, In the present case the constitutional relations depend upon the Confiinonwealth Constitution Act, an Act of the Imperial Parliament. That Constitution does, indeed, as Mr. Chamberlain pointed out, establisli a new political entity — the Commonwealth of Australia. But that political entity is not, as a matter of constitutional law, to be identi- fied with the Connnon wealth Government, or any government or Parliament : its organic existence is to be found in that power behind the Governments and Parliaments which can amend the Constitution. Of tlie present Constitution the essential feature is that the functions of crovernment are divided : it is that w^hicli makes it federal. The Common- wealth Government and Parliament are distinofuished from the States by the fact that they are charged wath powers and functions whicli are limited by enumeration, while the residuary powers of government are reserved to the States. These powers, save where they are subject to the paramount federal power in the case of the enumerated powers, are independent and not subject to federal supervision and control. There is nothing which casts on the States any THE STATUS OF THE STATES. 349 responsibility to tlie Commonwealth ; the wliole scheme of federal government is opposed to the existence of any super- visory authority over the States. This is undoubtedly the case within the Commonwealth itself, and it is submitted that there is nothinor in the Constitution which either directly or by inference justifies the view that, while within Australia the Constitution is to be treated as a federal union, conferring limited powers merely upon the Commonwealth Government, it is to be treated by the Imperial Government as an unitary constitution with a single responsible govern- ment. The divergence of opinion here indicated is at the root of several disputes between the Imperial and the Common- wealth and State Governments. It appeared in the first instance in respect to " the channel of communication" regarding the alleged breach of treaty obligations in the case of the Voiidrl, the matter already referred to.^ The Home Government communicated with the Commonwealth Government, and the Government of South Australia pro- tested, with the support of the other States. The particular contention of the States — that the enforcement of treaties, thouo'h it mio;ht be conferred in " external affairs" concerned the States solely until the Commonwealth exercised its legislative power — appears to be untenable. If a matter is within the paramount power of the Commonwealth, the continuance of State regulation of the suljject matter depends on the will ol" the Connnonwealth and that Govern- ment becomes at once the responsible authority. But the position of the Home Government advanced, as has been seen, farbej'ond this : " From ni}^ point of view the question between 3'our Ministers (i.e.. South Australia") and myself ^See Proceedings of iho Confoieiice ol riLiniers, IJrisbane, May U){)~ (Vict. Parliavientary Papers, 1907, No. 23, pp. 37-47), where tlie wliole subject is discussed in relation to the Vondel, Benjivmin and Weigall affairs. 350 THE COMMONWEALTH OF AUSTRALIA. is not one as to tho powers of the Commonwealth Parlia- ment but as to the responsibility of the Commonwealth, which is the measure of the sphere of the Commonwealth Executive." The question of the " channel of communication" has been tlie subject of much friction and is probably not yet finally settled. More than once a suggestion has been made by the Colonial Office that copies of all State despatches should be sent to the Governor-General. To tliis the States objected, and the present practice it is understood is that in case of any despatch from the State Governor,, touching what are vaguely denominated Commonwealth matters, a copy shall be sent to the Governor-General. Copies of all despatches from the Colonial Office to the State Governors are sent to the Governor-General, and a tendency to entrust the Governor- General with the distribution of circular despatches intended for the State Governors has manifested itself. The same issue has appeared in various phases. When, soon after the establishment of the Commonwealth, the Mayors of Sydney and Melbourne were raised to the dig- nity of "Lord Mayor," the State Governments remonstrated on the ground that they should have been consulted before the change was determined on, and that the announcement should have been made to the State Gov^ernor. The recom- mendation to the Crown for honours has been another sore subject; it has been settled on the basis that while both the Governor-General and the Governor recommend, the (Governor's recommendations are sent on to the Governor- General for his personal opinion thereon. The most important phase of the matter has been in relation to the Colonial or (as it is now to be called) the Imperial Conference in London. When invitations wei'e issued for the Conference of 1907 the States were not invited to send representatives. Tlien began an interesting THE STATUS OF THE STATES. 351 discussion on the Constitution of tlic Conference, both in the preliminary correspondence^ and in the Conference itself.^ Tlie highest ground taken by any of tlie States Governments"^ — that tlie Commonwealth Government was practically an agency for the management under a united control of certain administrative departments, and hence that the admission of the agent to the Conference and the exclusion of the principal was indefensible, both from the practical and the constitutional point of view — was plainly untenable, and was repudiated by tlie Commonwealtli Government in ]\lr. Deakiii's declaration that the Connnon- wealth Government was in no sense the agent or repre- sentative of the States Governments.* A second position asserted by the States Governments — tliat they were con- stitutionally entitled to consultation in all matters except those within the exclusive power of the Commonwealth-^ — appears to be equally untenable. In all cases where the Commonwealth Government has a paramount power of legislation it is, it is submitted, the sole representative of Australia. But the States were on firmer m-ound when they called attention to the fact that the range of discussion at the Conference Avas unrestricted and that some of the matters suggested for discussion were within the exclusive authority of the States, while others {e.g., Professional Qualifications, Imperial Stamp Charges on Colonial Bonds) were within the concurrent power (using that expression in its strict and proper sense) of Commonwealth and States. In regard to matters witli which the States were alone competent to deal, thu Prime Minister admitted that no ^Parliamentary Papera (iMiglish) 1907 Cd. Nos. 3340, 35-24. -Xo. 3523, pp. 9-2-24. 'Memorauduin of the Premier of South Australia 1907 Cd. No. 3340, p. •_•!. ' l\ -28. ^'Memorandviin of Premier of New South Wales, p. 2. o52 THE COMMONWEALTH OF AUSTRALIA. objection could be taken to the desire of the States to con- fer with representatives from other parts of the Empire \ but he denied that such subjects had been discussed at past Conferences, and, asserting that the Conference was " one in which representatives of all the chief constitutional Governments of the Empire met for the purpose of dis- cussing matters in which they have a common interest,"^ suggested that ample opportunities for discussion might be found through the medium of the State Agents-General in London or subsidiary Conferences. The desire of the Prime Minister of the Commonwealth was obvious — to restrict the range of discussion at the conference to such matters of pre-eminent importance and general concern as should establish it in a position of dignity and importance as the nucleus of an Imperial Council. But on the one hand Mi'. Deakin's ambitions for a new Imperial organ were not shared by all, whether in England or the Colonies ; and in the next place, discussions in a conference where all save one are governments of plenary powers, are not likely to be limited to those subjects which are in the power of tlie most restricted of them. Even the Conference of 1907 did consider certain subjects over which in Australia the Commonwealth Government either has no power, or over which the States exercise an independent authority which cannot be overridden by the action of the Common- wealth Government, e.g., Judicial Appeals, Reciprocity in the Admission of Banisters, Double Income Tax, Reciprocity in Admission of Land Surveyors, Stamp Charges on Colonial Bonds, Colonial Stock Act. In the discussion of such matters the Commonwealth representatives are in the strictest sense unofficial, without any authority from those who alone are competent to carry out any determination to which the conference may come, or who, as governments, iNo. 3340, p. 15. THE STATUS OF THE STATES. 353 may be directly affected by tlie resolutions arrived at. It is easy to see tliat sucli a position contains many possibilities of inconvenience and misunderstanding which may well impair the usefulness of the Imperial Conference and discredit this experiment in Imperial co-operation. State Powers Under Imperial Acts. — The status of the States under Imperial law has in one case come under the consideration of the High Court of Australia, which has rejected the doctrine of the merger of the States in the Commonwealth. M'Kelvey v. Meagher'^ was a case under the Fugitive Offenders Act 1881. That Act, dealing with the case of persons who, being accused of an offence com- mitted in " one part of H.M.'s Dominions," are found in some " otlier part of H.M.'s Dominions," provides for the necessary acts of authority to be done in the United King- dom, or in tlie " British possession" concerned for the surrender of the fugitive. Its interpi'etation section (39) declares that tlie expression "British possession" means "any part of H.IM.'s Dominions exclusive of the United Kingdom, the Channel Islands, and the Isle of Man," that all " territories and places within H.M.'s Dominions which are under one legislature shall be deemed to be one British possession and one part of H.M.'s Dominions," and that " the expression, ' legislature ' where there are local legislatures as well as a central legislature, means tlie central legislature only." A warrant for the apprehension of an alleged criminal was issued in Natal and broufrht for execution to Victoria, where it was endorsed b}' the State Chief Justice, who would have been undoubtedly competent before the establishment of the Commonwealth. The defendant was apprehended under the warrant and committed by a Victorian Magistrate; but a writ of Jiabeas corpus was obtained, and liis release from custody was prayed on the ground thai, since federation, MliWO) 4 (M..11. 2(3.-). See also In re Gerhard, 27 V.L.R. 244, (355. 354 THE COMMONWEALTH OF AUSTRALIA. Victoria had ceased to be a "part of the British Dominions" or a " British possession" within the meaning of the Act ; that these terms were now exclusively applicable to the Commonwealth, and that consequently neither the Chief Justice of Victoria nor the Victorian Magistrate was com- petent to act in the matter. The High Court held that the proceedings were good,, and that the test of application in cases of this kind was to be found, not merely in the existence of central and local legislatures, but in the dis- tribution of powers between them. If in the Constitution the power of the new legislature did not extend to the subject-matter of the Imperial Act — the administration of the criminal law and the extradition and rendition of fuffitive offenders — such a legislature was not a central legislature within the meaning of the Act. In the present case the administration of criminal justice remained with the States. If the Commonwealth power over " external affairs" extended to making laws for the surrendering of fugitive criminals, then the existing law in force in the State at the establishment of the Commonwealth was pre- served by sec. 108 of the Constitution until such time as the Commonwealth Parliament exercised its powers. There are several other Imperial Acts applicable to " Brit- ish Possessions " and " parts of His Majesty's Dominioas," and conferring powers on the Legislature or the Governor of such possessions or parts, and raising questions similar to those arising under the Fugitive Offenders Act, e.g., the Extradition Act 1870, and the Naturalization Act 1870. In regard to all Imperial Statutes passed after 1889, the Interpretation Act of that year makes a general provision of a corresponding nature. In all these cases the Imperial Act will continue to apply to the State, and the powers m&,Y be exercised by the State authorities by virtue of sees. 107 and 108 of the Constitution, unless the subject matter is one THE STATL^S OF THE STATES. 355 withdrawn by the Constitution from the States or committed to the exclusive power of the Commonwealth. Several matters are so dealt with. By sec. viii. of the Constitiition Act the powers conferred upon Colonial Parliaments by the Colonial Boundaries Act 1895 are, in the cases of the Australian States, recalled, and, as b}'' sec. 115 of the Constitution, the States may not coin money or make anything but gold or silver legal tender, their powers under Imperial coinage legislation are with- drawn. The special powers conferred by Imperial Acts in relation to defence, inland posts, Customs, and a few other matters, belong solely to the Commonwealth Parliament, because the subjects themselves are declared by the Consti- tution to be within the exclusive power. In regard to special powers granted by tlie Imperial Parliament after the establishment of the Commonwealth, the test must be found in their relation to existing powers of tlie several Legislatures. If the special power granted relates to a matter within the control of the Counnon- wealth Parliament — as, for instance, if extended powers were given to Colonial Legislatures to vary or suspend the operation of the Imperial Copyright Acts in that posses- sion — then, unless there were a clear intention that the power might be exercised by botli Legislatures, it would presumably be exercised by the Commonwealth Parliament exclusively. But so far as the new pow^er applied to matters not within the control of the Commonwealth Government at all — if, for instance, it extended territorially the effect of a grant of Colonial probate — it would belong to the States exclusively. If again it were declared that in certain specific matters Colonial Legislatures might inakc criminal laws operating extra-territorially, the power so given would belong to the Commonwealih or the State Parliament accord- 356 THE COMMONWEALTH OF AUSTRALIA. ino; as the matter of such laws belongred to the one or the other. In one respect the States in Australia liave greater free- dom than the States in the American Union. In the United States Constitution it is expressly provided that no State may " enter into any treaty, alliance or confederation " or '■■ enter into any agreement or compact with another State or with a foreign power." In Australia there are no corre- sponding provisions. Treaties or compacts with foreign powers are, of course, not made independently by any part of the British Empire ; and the power of the Common- wealth Government over "external affairs" would, no doubt, exclude the States from most of the matters of international agreement. But, as pointed out in tlie discussion of "ex- ternal aftairs," there are some matters of agreement which relate to matters belonging exclusively to the State, and in such cases it seems clear that the State must be a consent- ing party to any international agreement. As between the States of the Commonwealth, their power to make and carry out agreements is in no way impaired, except so far as the agreement is inconsistent witli the federal union or the predominance of the Commonwealth in its own sphere. The States have, in fact, concluded some important agree- ments — e.g., New South Wales, Victoria and South Aus- tralia in 1908 as to their respective rights in the waters of the River Murray, and Victoria and South Australia as to their disputed boundary line.^ Reference may be made to the fact that tlie Conference of Premiers of the States has, since federation, increased rather than diminished in interest, and stands as an interestincr illustration of the Britisli tendency to develop " extra-legal " institutions, even under a formal and " rio-id " Constitution. o ^These agreements have not been ratified by the Parliaments of the States concerned. i [357] PART VI -THE CONTROL OF COMMON- WEALTH AND STATE ACTION. CHAPTER I. THE COURTS AND LEGISLATION. The most distinctive feature of the Courts in the federal system is tlieir power to determine wlietlier a Statute passed by the Commonwealtli or by a State Parliament is within the authority conmiitted to that Legislature, a power which gives the Courts a peculiar importance in consti- tutional law and makes them in an especial way the " guardians of the Constitution." If we ask wdieuce this power and duty come, we sliall hardly find an answer in any specific provision of the Constitution itself, nor shall we find the explanation in the essential nature of the federal principle or of tlie " written Constitution." It is indeed, obvious that where tliere are two legislative authorities in a State wliich have enunciated irreconcileable rules of conduct, one must be paramount. Thus, in Germany and Switzerland, wlierc the law of State or Canton conflicts with federal laws or the federal Constitution, the Courts must treat the State law as pro ianto over-ridden. But, save for this case, the balance of opinion in Germany appears to be that no Court can treat tlie authentic act of 358 THE COMMONWEALTH OF AUSTRALIA. a Legislature as inoperative, that e.g. a State Statute cannot be ignored because contrary to the State Constitution or an Imperial Act as contrary to the Imperial Constitution.^ In other words, the Legislature is as much the interpreter of its own powers as in the unitary Constitutions of France and Belgium. In Switzerland the Constitution is guarded characteristic- ally by reference to the electorate. The Supreme Federal Tribunal is by an express provision of the Constitution bound to give effect to every Statute passed by the Federal Assembly; the only mode of challenge is by the demand of 30,000 electors, or eight cantons, for a referendum. The Statutes of the Cantons are subject to review in the Federal Tribunal if contrary to the Federal Constitution, but cannot be questioned in tlie Courts of the Cantons. The system under which the valid exercise of legislative power is treated as a judicial question belongs to the history of the relation of courts of law to public power. In the reio-n of James I. the Courts succeeded in making good tlieir claim to entertain legal causes though they involved the prerogatives of tlie Crown, whether in the nature of property or executive power. Thus tliey effectually pre- vented the establishment of any practical distinction in the administration of public and private law ; and if on the one hand questions of power are treated judicially in suits between individuals, on the other, it is not to be forgotten that all justice is with us " public justice " and that the term " private justice " is not known amongst us. If executive power was thus a subordinate power subject to judicial review, it w^as by no means clear that legislative power was not subject to the same control, and tliere are dark hints in Coke of Acts of Parliament which had been declared invalid or at "^E.g. see The German Judicku-y, by .J. W. Garner, Pol. Sc. Quarterly 1903, p. 524 ; Howard, The German Empire, p. 120. THE COURTS AND LEGISLATION. 359 any itite might be so declared. The supremacy of Parlia- ment indeed became unmistakeablv established after the Revolution of 1689 ; but tliere were other legislatures as clearly subordinate. The American Colonies held charters of government from the Crown ; and were constantly reminded that they nuist keep within tlie terms of the grant. Control by forfeiture of charter, by Act of Parlia- ment, by judicial proceedings and an ultimate appeal to the Privy Council, whose action might be referred now to one, now to another of its high functions — these were the constitutional checks with which tlie colonies were familiar. A subordinate legislature being within the experience of all, the Revolution, though it removed some of the external checks, established a form of government which emphasised the subordinate character. It was not readily assumed in tlie Federal Constitution, that the judicial power in the Courts would be all-sufficient to deal with the possibilities of conflict. In the Philadelphia Convention it was suc- cessively proposed that the general government should have a negative on all the legislation of the States — the power which eighty years later was given to the general govern- ment in Canada ; that the Governoi's of the States should be appointed by the United States and should have a negative on State legislation — a condition also established in Canada ; that a Privy Council to the President should be appointed composed in part of the judges ; and that tlie President and tiie two Houses of Congress might obtain opinions from the Supreme Court. But these expedients were discarded : the Constitution and the laws of Congress were declared the supreme law of the hind and binding on the Judges of the several States. It was not without some hesitation on ilic part of the Courts, and some resistance on tlie part of the Legislatures, that the further steps were taken by the Courts of holdinu', in the case of both the States Constitutions and c 360 THE COMMONWEALTH OF AUSTRALIA. the Federal Constitution, that the Courts must as a matter of judicial duty hold invalid laws which were inconsistent with the distribution of powers within the respective governments.^ It is interesting to observe how questions similar to those wliicli agitated the framers of the United States Consti- tution were dealt with by the Australian Convention. In the early history of the Australian colonies, the Legislature and the Supreme Court were brought into curiously close relation by the part which was assigned to tlie Chief Justice in the Legislative Council of the Governor of New South Wales by 4 Geo. IV. c. 96, sec. 29 ; and by the compul- sory submission of all Acts of the Legislative Councils to the Supreme Court for the consideration of their validity under 9 Geo. IV. c. 83, sec. 22. But these examples did not inlluence the deliberations of the Convention. The mem- bers of the Convention were, however, thoroughly acquainted with the prevalence and the nature of judicial control as developed in the LTnited States, a control experienced in some small degree by the Colonies themselves, notably in the early days of Responsible Government in South Aus- tralia. The tendency w^as in fact rather to exaggerate than to underrate tlie controlling power of the Courts. In general, the power was regarded with singularly little jealousy or suspicion, a phenomenon entirely in accord with the tendency of the day to submit to judicial authority problems which are more economical or political than legal. Two substantive proposals were submitted as to unconsti- tutional laws. In the first place it was mov^ed that when any law passed by the Conunonwealth Parliament was declared ultra vires b}^ any decision of the High Court of iSee Rutgem v. Waddiiig/on, (1784) N.Y., Thayer, p. 63 ; Trerett v. Weedm, (1786) Rliode Island, Thayer, p. 73 ; Cooper v. Telfair (IHOi)) 4 Dall., 14, Thayer, p. 105; Alarhury \. Madison, (1803) I Craiich, 1.37, Thayer, p. 107 ; Eakiji v. Baub, (1852) Pennsylvania, 12 S. & R., 330, Thayer, p. 133. THE COURTS AND LEGISLATION. 361 Australia, the Executive niiglit, upon the adoption of a resolution by absohite majorities in both Houses, or, as was .suggested, in one House alone, refer the law to the electors for their approval. The other proposal was of a more sweeping kind. It was to the effect that the plea that a law of the Commonwealth or of a State was ultra vires should not be raised in any Court except, in the case of a Commonwealth law, by or on behalf of any State ; or in the case of a State law, by or on behalf of the Common- wealth, but without prejudice to the power of the Courts in any litigation to deal with conflicts of Connnonwealth and State law. The proposal received no support, and the maintenance of the individual right to impugn laws is the more significant because in other respects the Constitution differs markedly from the Constitution of the United States in not establishintj riohts of individuals a^i^ainst govern- mental interference. The duty of passing upon the validity of Acts whether of the Commonwealth or of the State Parliament exists purely as an incident of judicial power. It belongs not to any one Court, or any system of Courts, but to all Courts within the Connnonwealth, whatever their degree, whenever in a matter in litigation before them, some Act of the one Legislature or of the other is invoked. It is the duty cf every Court to administer the law, of which the Constitution is a part and a superior part. " The Judges of the United States control the action of the Constitution, but they per- form purely judicial functions, since they never decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The Court never directly pronounces any opinion whatever upon an Act of Congress. Wliat the Court docs do is simply to determine that in a given case A. is or is not entitled to recover judgment against X., 362 THE COMMOMWEALTH OF AUSTRALIA but in determining that case the Court may decide that an Act of Congress is not to be taken into account, since it is an act beyond the constitutional power of Congress."^ When the matter has become the subject of judicial investigation, the judicial interpretation binds the Legisla- ture only in indirect fashion. The decision becomes an authority, raising a probability ranging, according to many circumstances forming part of the practice of our Courts, from practical certainty on one side to the gravest uncer- tainty on the other, that that Court and other Courts will decide the same question in the same way. The Legislature being aware of this probability will generally refrain from passing Acts which would tlius be ineffective by reason of the refusal of the Courts to enforce them. No principle is better established than that the Courts will not consider the validity of a legislative Act except at the instance of one whose rights are touched by sucJi Act : and the case must be one in which the Courts can give relief. It may not be easy for those who desire to impugn sucli leo-islation to show that their interest amounts to a right which the Statute invades, and the Courts will not proceed to the consideration of these matters upon feigned issues and as abstract questions.- Again, the only persons who have a locus standi may deem it impolitic to attack the Statute, either through fear of further governmental action of less doubtful validit}' and more hurtful in itself, or from fear of the loss of some contingent benefit, or from regard to public opinion. It is possible, of course, that the principal object of a suit ^ Dicey, Lav: of the Con»tiliition, p. 15.5. It is, perhaps, going too far to say thai the Court never directly expresses any opinion upon an Act of Congress. -See Brua v. The Commoirwealth Trade Marki Label As>iociatio7i and others, (19u7) 4 C.L.R. 1569 ; A,-G. for New South Wales v. Brewery Employee Association of New South Ha/es (190S) 6 C.L.R. 469. THE COURTS AND LEGISLATION. 363 inaj' be to obtain a judgment upon the constitutionality of a Statute. The immediate matter in dispute may be trifling in amount ; but the suit is a " test case." Tliat is no ground upon which the Court can refuse jurisdiction. But it must be a real and not a fictitious suit ; the Courts will not permit issues on feigned facts. Between these cases lies the " friendly " or " collusive " action, i.e., one in which are present all tlie facts which ordinarily give jurisdiction to tlic Courts and raise an issue, but the suit is a " friendly " one, and there is a substantial identity of interests of the parties, or the facts which give rise to the action have been done for the purpose of creating an issue to be tried. Such a course is not uncommon ; in England and the Colonies some of tJie most important constitutional ([uestions liave been determined in collusive actions. It is vobvious that as authorities such cases may rightly be regarded with sus- picion, but tlie Supreme Court of the United States has gone the length of declaring tliat the Courts will not in such a cause consider the validity of a Statute. In 1891, in the Cliicago and Grand Tnmk Railway Company v. Wellman,'^ the Court said : — " The theory upon which apparently tliis suit is l)rought is that the parties have an appeal from tlie Legislature to the Courts, and that the latter are given an immediate and general supervision of the constitutionalitv of the former. Such is not true. Whenever, in ]:)ursuance of an lioii(\st and actual antago- nistic assertion of riglits by one individual against anotlier there is presented a (juestion involving tlie validity of any Act of any Legislature, State or Federal, and tiie decision necessarily rests on tlie competency of the Legislature to so enact, the Court must, iu the exercise of its solemn duties, determine whether the Act be constitutional or not, but such an exercise of power is the ultimate and supreme 'U.-J U.S. ,s.3<). 364 THE COMMONWEALTH OF AUSTRALIA. fiinccion of Courts. It is legitimate only in the last resort and as a necessit}^ in the determination of real, earnest and vital controversy between the individuals. It never w^as thought that by means of a friendly suit a party beaten in the Legislature could transfer to the Courts an inquiry as to the constitutionality of the legislative Act." The English practice seems more favourable to friendly suits, if, at any rate, they are brought and conducted in good faith. In Foivcll V. Kempton Park Racecourse Co.} the suit was avowedly a friendly suit, the purpose of which w^as to obtain a decision of the highest judicial tribunal as to the construction of an Act of Parliament. It is true that to ask the Court to construe an Act of Parliament is not quite the same thino- as to ask the Courts to declare that a Statute is invalid, but each is the judicial determination of a question of law in a matter where the parties have rights. Lord Halsbury said (p. 157) : — " I think it is right to say that in my view it is absolutely immaterial what motive has induced the plaintiff' to bring this action. Once it is brought, the Court before whom it comes must decide according to law, and the construction of an Act of Parlia- ment is a pure question of law, and must be decided according to its legal construction whatever may be the motives and wishes of the respective litigants." And Lord James, of Hereford, said (p. 190): — "It seems clear that the action was brought in good faith for the purpose of obtaining an authoritative and final judgment. Probably the plaintiff* will regard with satisfaction his want of success in the action. But the judgment whatever it may be will and must be acted upon. This, therefore, is not a case wdiere the judgment of a judicial tribunal is sought for the purpose of determining a right for mere abstract purposes." M1899) A.C. 143. 1 THE COURTS AND LEGISLATION. 3G5 The consideration of constitutional questions purely as an incident of judicial power has one great advantage : " the judicial control " — Mr. Bryce objects to the expression altogether — is exerted with the least possible amount of friction. But it has two considerable defects. The prac- tical importance of a decision of the Courts lies in its authority as precedent ; and it may well be for the pub- lic interest that a cause involvino- o-reat constitutional questions should not be left wholly in the hands of the parties. The parties may not be able to command the best legal assistance, or the}^ ^^^^y be content wiih the decision of a Court which is not the Court of ultimate appeal. These inconveniences may of course be mitigated by the public authority concerned taking up and carrying on the case/ or by the intervention of such authority as an interested third party where the circum- stances admit it. The High Court of Australia has in several instances allowed the State Government or the Commonwealth Government to intervene in suits in which it was not a party on the record, e.g., The State Railway Servants Case,^ where the State of Victoria was heard on the ground of community of interest ; The King v. Barger,^ where Victoria was again an intervenant, the case beino- one which raised the whole question of the relation between Commonw^ealth and State Governments, not in one particular only, but generally ; Baxter v. Commissioner and Flint v. 'As in A.G. for Ontario v. Mercf.r, (1883) A.C. 767, where the contest was virlually as to wliether certain prerogative rights in land belonged to the Crown in right of Ontario, or of the Dominion of Canada. The defendant was content with the judgment of the Conrt of first instance, but the Domiinon of Canada appealed in the name of the defendant and was heard in the Supreme Court and in tlie Judicial Committee. The latter treated the public character of the case as a reason for making no order as to costs. And sec Todd, Parliamentary Gorernnient in the Coloniea, p. 541. - (100(5) 4 C.L.ll. 4SS. =■6 0.^^ 41. 866 THE COMMONWEALTH OF AUSTRALIA. Webb (the Income Tax Cases),^ where the Commonwealth was an intervenant ; tlie Woochvorkers Case,^ where the Commonwealth and the State of New South Wales inter- vened. In ]Vebb v. Outtvim^ the Privy Council permitted the Commonwealth to intervene in the appeal. The other defect of tlie system belongs to the accidental character of litigation/ an inconvenience which belongs to all judiciary law. In England the authority of Parliament is now available to settle disputed questions of law. But tliis was not always the case ; Parliament was normally divided rather than united, and Parliamentary action requires unitj^ The great importance of judicial determin- ations in the seventeenth century lay in the fact that as disputes concerned the powers of the constituent parts of Parliament itself, these parts could not co-operate to settle or change the law. The opinion of the judges, whether judicially or extra-judicially expressed, was a powerful weapon, whicli the King was eager to tui/n to his own advantage. He was not disposed to wait, nor did law or custom then require him to wait, until litigation should arise. In a Federal Constitution, the circumstances arc somewhat analogous. The Constitution is in no case readily alterable ; it is quite likely tliat the very nature of the dispute precludes the necessary co-operation of powers. In any case there may be many uncertainties which may embarrass the Government and paralyse its action. The Government desires to know not whether it has done right, but whether it may do this or that thing. Very early in the history of the United States Constitution, the judges of the Supreme Court had to decide upon their attitude M1907)4C.L.R. 1087. 2(1909) 8 C.L.R., 15 A.L.R. "(1907) A.C. 81. *See Bryce, The American Commonwealth, Part I., Chapter XXIV. THE COURTS AND LEGISLATION. 367 towards questions of law addressed to them by tlie Executive. In 1793, Waslirngton sought tlie opinion of the judges of the Supreme Court as to various questions arising under treaties with France, but after some delay the judges, " considering themselves merely as a legal tribunal for the decision of controversies brought before them in a leo;al form, deemed it improper to enter the field of politics by declaring their opinion on questions not growing out of the case before tliem."^ In several of the States of the Union, the Consti- tutions have provided that the Judges shall give opinions when called on by the Executive or the Legislature. Such opinions are never regarded l)y the Judges themselves as authoritative, and may be departed from by the Courts even when constituted by the same Judges who have given the opinion. Such opinions are given under an obvious dis- advantage, since the Judges have not the assistance of the arguments of counsel. In Canada, by the Su2')revie Court Act 1875 (R.S.C. c. 135), extended by 54 & 55 Vict. c. 25, the Governor-General in Council may refer to the Supreme Court various specified matters including questions touching provincial legislation and the constitutionality of any legis- lation of the Parliament of Canada, and generally any other matter with reference to which tlu; Executive sees fit to exercise this power ; and in certain limited cases the Senate or House of Connuons may seek the assistance of the Court. These references are modcllcil closely upon the fonii of judicial proceedings. It is the duty of tlu' Court to hear and c(Mi.sid('r the nialtcr I'cferred to it: paitics intei'osti'd, wliether Provincial Governments, associations or individuals, are cited, and are represented by counsel, and ilie finding of the Court is practically a declaratory judgment, on which an appeal may be taken to the King in Council. The power may be compared both with the powt-r of the ^Marshall's Life of Washington, vol. v. 441. 368 THE COMMONWEALTH OF AUSTRALIA. House of Lords to consult tlie Jud^-es, and the power of the Crown under 3 & 4 Will. IV. c. 41, sec. 4, to refer to the Judicial Committee for hearing or consideration any sucli matters whatsoever as the Crown shall think fit. The power has been very freely exercised, and many of the important constitutional questions which have come from Canada to the Priv}^ Council during recent j^ears have been submitted under it. The inconveiiience of determining certain matters as abstract questions has been referred to/ but the Court is able to guard itself, and the power of reference seems to have been exercised with advantage. It may be noted that the proposal submitted to but rejected by the Australian Convention for prohibiting any challenge of a Statute as ultra vires save on behalf of the Commonwealth or a State, assumed that a substantive proceeding might be taken in the Court by the Attorney-General of the one or the other for the determination of the validity of such a Statute. In Canada, as in other colonies, the Judiciary is organized under the Parliament which fully determines its functions. In the Commonwealtli, as in the United States, it is judicial power which is vested in the Courts, and it is clear that the advisory function is not included in the power, even when the Court may hear evidence and arguments to aid it in giving advice.^ iJ.-C. for Dominion v. A.-G. for Ontario, (1898) A.C. 700, at p. 71o. -By the Local Governmf.nt Act 18S8, sec. 29, anj' question arising or about to arise as to wiiether any business, power, duty or liability passes to a County Council under the Act, may, without prejudice to any other mode of trying it, on the application of certain persons be submitted for decision to the High Court of Justice, and the Court after hearing such parties and taking such evidence (if any) as it thinks just, shall decide the (piestion. In Ex parte the County Council of Kent v. Council of Dover, (1891) I Q.B. 7"25, the Court of Appeal held that such an application was purely consultative and not judicial, that it " could only be decided in the sense of expressing the opinion of the Court how it ought to be decided" when the question should arise in an actual determination of an existing dispute in which a private right was involved. [369] CHAPTEK II. THE VALIDITY OF LAWS: PRINCIPLES OF INTERPRETATION. When a properly authenticated Act ol" the Parliament of the Commonwealth is invoked in any Court, the Court must be satisfied that it is an exercise of some power which has been o-ranted to the Parliament. The determination of this matter involves two things — the interpretation of the grant of power, and the consideration of the nature of the Act purporting to be in pursuance of the power. The Interpretation of the Grant. — The general nature of the power of the Parliament and its limitations have been considered in a previous chapter. The particular subjects committed by enumeration in any federal Constitution are so various in character that we may take note at the outset of judicial warnings against entering " more largely upon the interpretation of the Statute than is necessary for the particular question in hand;"^ and while the Common- wealth Constitution avoids some of the most troublesome of the difficulties that have confronted the interpreters of the Canadian Constitution (e.g., the specific enumeration of the powers of each as exclusive, and such vague matters as "criminal law," " property and civil rights," and " all matters ^CitiztU'i Insurance Co. of Canada v. Pay-son", (1S81) 7 A.C. 1)6, at p. 109. A A S70 THE COMMONWEALTH OF AUSTRALIA. of a merely local and private nature"), it undeniably pre- sents certain difficulties of its own. In fact, a certain generality and breadth of description belongs to the very nature of a Constitution. As was pointed out long ago by the Supreme Court of the United States in what has become the leading case in American Constitutional Law, " a Constitution to contain an accurate detail of all the subdivisions of which its great powers will .admit and of all the means by which they may be carried iinto execution, would partake of the prolixity of a legal 'Code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature requires, therefore, that only its great outlines should be marked, its more important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."^ Unless this is the main character of the powers conferred by a Constitu- tion, it will assuredly lack that flexibility and power of •development which alone enables a " rigid " Constitution to .serve and promote a healthy national life.^ In the Australian Constitution there are wide differences in the nature of the enumerated powers. Some, like " taxation," " trade and commerce with other countries and .among the States," " external affairs," are expressed in the broadest terms, and obviously extend over a wide and very indefinite field. Great " substantive and independent powers" they point to an end and leave to the legislative •discretion that unlimited choice of appropriate means which is the first great rule of constitutional interpretation. On the other hand, there are powers over subjects of a very iPer Marshall C.J., McCuUochv. Maryland, (1819) 4 Wheat. 316, at p. 407. The principle is adverted to and approved l)y Griffith C.J. in Baxter V. Commissioners of Taxation for N.S. W., 4 C.L. R. at p. llOo. -See The State Railioay Servants' Case, 4 C.L.R. 488, 534. VALIDITY OF LAWS. 37 1 limited nature, suggesting rather a particular means of accomplishing a national end. Thus we have "quarantine," one of man}^ means towards the preservation of public health; " the prevention and settlement of industrial dis- putes extending beyond the limits of any one State" may be attacked only through " conciliation and arbitration." " Copyrights," "patents of inventions and designs," and " trade marks" are a part only of property. Nevertheless, it may be taken that as to these subjects the doctrine of the legislative choice of means applies,^ though its scope of course is limited. It lias been said of the Constitution of the United States,- and the principle has been judicially recognized as applicable to tlie Commonwealth Constitution,-^ that the safest rule for interpretation is " to look at the nature and objects of the particular powers, duties and rights witli all the aids of contemporary history, and to give to the words of each just such operation and force consistent with their legitimate meaning as may fully secure and attain the ends proposed." This principle appears to be well illustrated by the Union Label Case* which declared invalid Part YII. of tlie Trade Marks Act 1905, establishing " Workers Trade Marks." In Parliament it was contended that the subject was one of a varying nature, as indicated by the several definitions of it from time to time, and ^\•llilf' it was admitted that Parliament could not, by its own interpre- tation of the sfrant in the Constitution, enlarire its own power, still as the legislative power undoubtedly covered restrictive definition, some latitude of extensive interpre- '.See Jnmhunna Coal Mine v. Victorian Miners' AKSociaiion, (1908) 6 C.L.R. .309. -Per Story J. in Priijij v. Peniisyhnuiii, 1(! Peters (310. "Per Isaacs J. in Varden v. O'Loijhlin, (19(»7) 5 C.L.R. at 215. *A.-G. for New South Wales v. Brewery Employes Union, (190S) C.L.R. 469. 872 THE COMMONWEALTH OF AUSTRALIA. tation should also be conceded in accordance with the fluctuating needs of the community.^ In the High Court an attempt was made to construe the grant as though it were of " marks relating to trade," but in the main the argument in support of the enactment was addressed to showing that all the essentialia of a trade mark as pre- viously determined by law were to be found in the workers' mark, and what were not found were accidentalia merely, and that there was evidence of a use of the term " trade mark" before the Constitution was enacted to describe marks of the kind here in question. The Court held that the n-ieanino- of the term " trade mark" must be ascertained by its signitication in 1900, and after a careful examination of tlie legal history of the term from 1862, came to the conclusion that, regard being had to legislation, international conventions and judicial decisions, the term did not include certain marks which presented some of the features of the mark in question, and did imply other elements which were not found in the mark. The general interest of the case lies in showing that terms employed in the Constitution are to be interpreted accord- ing to the meaning which they bore at the time the Constitu- tion was enacted, and this principle is now assumed as an ordinary rule of construction.^ How far particular words in a Statute are to be construed as embracing matters v/hich were not and could not have been in the contemplation of tlie authors is a question of difficulty not belonging to the interpretation of Constitutions alone. But as Constitutions are essentially designed to serve a permanent and not merely a temporary end, there is a strong temptation to ^See f.f/., Parliamentary Debates 1905, p. G20L See also the dissenting judgment of Higgins J. in A.-G. for- Ntw South Wales v. Brewery Employe'^ Union, (1908) 6 C.L.R. at p. 603. . -See e.g. The Woodworkers' Case, (1909) 15 A.L.R. at p. 380 (Griffith C.J.). . VALIDITY OF LAWS. 373 subject them to a "progressive" interpretation.^ The reconciliation, so far as the subjects of federal power are concerned, is stated in the following passage from the judg- ment of Griffith C.J. : — " The Pai-liament cannot enlarge its powers by calling a matter with which it is not competent to deal by the name of something else which is within its competence. On the other hand, it must be remembered that with advancing civilization new developments, now unthought of, may arise with respect to many subject- matters. So long as those new developments relate to the same subject-matter, the power of the Parliament will con- tinue to extend to them. For instance, I cannot doubt that the powers of the Legislature as to posts and telegraphs extend to wireless telegraphy and to any future discoveries of a like kind, although in detail they may be very different from posts and telegraphs and telephones as known in the nineteenth century. An instance of a quite different kind of subject-matter is immigration, the meaning of which term cannot alter, however the methods of bringing persons within the geographical limits of the Commonwealth may be extended."- And, of course, when the limits of the subject-matter are ascertained, the legislative choice of means for accomplishing its objects in relation thereto is not bounded by those means which were known to and in the contemplation of the framers of the Constitution. It has been pointed out that, regarding the Constitution as a whole, and viewing the relations of its several parts to each other, it must be taken to establish a federal scheme wherein each orovernment — the Commonwealth and the State — has a sphere of action in which it is independent. 'See the discussion in Clark's Atcstralian Constitutional Laic, '2nd ed., pp. 19 Keq. ^A.-G. for Xeir South Walcn v. Brewery Einploi/ds Union, 6C. L.R. at p. 501. 374 THE COMMONWEALTH OF AUSTRALIA. The federal nature of the Union then imports this consequ- ence — that the Constitution, being at pains to determine the sphere and the independence of each government, could not have intended that particular powers should receive a construction which would nullify or impair that determina- tion. If, then, terms are used in the grant of particular powers to the Federal Government which, according to one interpretation, would, from their comprehensive nature, impair the federal character of tlie Union and establish in effect an unitary system of government, or which, according to one construction, are inconsistent with the maintenance of powers in the States which tlie Constitution elsewhere reserves to them, an interpretation is to be preferred which supports the federal scheme, or the reserved powers of the States respectively. " The Constitution must be considered as a whole and so as to give effect as far as possible to all its provisions. If two provisions are in apparent conflict, a construction which will reconcile the conflict is to be pre- ferred. If then it is found that to give a particular meaning to a word of indefinite and possibly large significance would be inconsistent with some definite and distinct prohibition to be found elsewhere, either in express words or by neces- sary implication, that meaning must be rejected."^ In determining the extent of power conferred by the power to make laws with respect to " taxation," and the exclusive power to impose duties of excise, the Court has taken notice of the fact that a Constitution which expressly enumerates a number of matters relating to the internal affairs of the States, and which in dealing with trade and commerce expressly limits that subject to trade and commerce with foreign countries, and amongst tlie States, forbids to the Commonwealtli Parliament any con- "■The King v. Barger, (1908) 6 C.L.K. at p. 72. See also A.-G. for New South ]Valts v. JJreivery Employ 6h Union, (i C.L.R. at p. 503. VALIDITY OF LAWS. 375 trol over tlie internal affairs of the States except so far as thus granted, and that, tlierefore, the power of taxation does not extend to any direct interference with those affairs; and the States are not precluded from rcofulatino- industries, &c., by tlie customary mode of licensing, though those licenses may be commonly known as " excises."^ In the Union Label Case,^ the Court again refers to the fact that as to trade and commerce, the power of the Commonwealth is expressly limited to that which is with foreign countries and among the States, thereby implying a prohibition to impinge upon internal trade and commerce — the sphere of the State — except as a necessary means to carry out some other power expressly granted. The Chief Justice sums up the position thus: — "In my opinion it should be regarded as a fundamental rule in the construction of the Constitution, that, when tlie intention to reserve any matter to the States to the exclusion of the Commonwealth clearly appears, no exception from that reservation can be admitted whicli is not expressed in clear and unequivocal words. Otherwise, the Constitution will be made to contradict itself, which upon a proper con- struction must be impossible."^ More emphatically, in Huddart Parker v. Moorhead,^ Griffith C.J. (Barton and O'Connor JJ. concurring), declares that the Constitution is "to be construed as if it contained an express declar- ation that power to make laws witii respect to trade and commerce witliin the limits of a State, and not relating; to trade and commerce with other countries and amonor the States, is reserved to the States, except so far as the exercise ' The Kiuij V. Barrier, (1908) 6 C.L R. 41 ; Peferswahl v. Barthy, (1904) 1 C.L.K. 497. See also Lyons v. Smart, (190S) 6 C.L.R. 143, 147. ■A.-O. for Xew South Wales v. Brewery Einployda Union, (190S) G C.L.R. 469, 50J-3. "At p. r).S3. See also per Oriffitli T..!., in Hnddart Parker v. Moorheady (1909) C.L.R. ; 15 A.L.R. at p. 248. M5 A.L.R. at p. 24S. 376 THE COMMONWEALTH OF AUSTRALIA. of that power by the Commonwealth is necessary for or incidental to the execution of some other power conferred on the Parliament." This declaration is made a part of the headnote of the report of the case. The principle thus reiterated by the Court has been applied to the attempted regulation of industrial relations by Excises {B. V. Barger)} to the scheme for registering a workers' mark upon goods {A. -G. for New South Wales v. Brewery Employes Union),^ to the application of the Australian Industrial Preservation Act to corporations engaged in the domestic trade of a State (Huddart Parker v. Moor- head)'^; and is invoked by the Chief Justice in the Wood- worhers' Case} It lias been vigorously assailed by Isaacs and Higgins JJ. Admitting that the Constitution is to be read as a whole so that its parts shall be consistent with each other, the learned justices contend that the proper course is to give to the several terms defining the grants of power, their natural and proj)er meaning, unaffected by any implications of restraint based upon the supposed powers of the States ; and in the rejection of implied restraints upon powers, there is claimed the support of the Privy Council, and (in the case of the taxing power), the Supreme Court of the United States. The pov.^ers of the States reserved by the Constitution are merely what is left to them after the Commonwealth power has received its full interpretation ; to construe the special grant by the residuary disposition is a clear inversion of the position, and is rather a judicial limitation upon than an interpretation of the grant of powers.'' 1(1908) 6 C.L.R. 4L •-(1908) 6 C.L.R. 469. "(1909) 15 A.L.R. 241. *(1909) 15 A.L.R. 374, 381-2. ^See the dissenting judgments in Th<', Khig v. Barger, and the Union Label Case. In Huddart Parker v. Moorliead, Higgins J. concurs witli the majority. VALIDITY OF LAAVS. 877 On tlie otlier hand, it must be observed that no principle is better established in the United States than that tlie preservation of the integrity of State powers is a necessary part of the constitutional system : " it may be not unreason- ably said that the preservation of the States and tlic maintenance of their governments are as much within the design and care of the Constitution as the preserva- tion of the union and the maintenance of tlie National Government."^ The most signal illustration which the principle has received is the construction put by the Supreme Court upon the amendments in the Constitution made after the civil war of 1861. These amendments declared that no State should make or enforce any laws abridging the privi- leges or innnunities of citizens of tlio United States, nor should any State dej)rive any person of life, liberty or property, without due process of \'A,\\ ; nor deny to any per- son within its jurisdiction the equal protection of the laws ; and Congress was given power to enforce these prohibi- tions by appropriate legislation. In the Slauglder House Cases,^ it was contended that a State law establishing a trade monopol}' was a violation of these provisions ; but the Court, rejecting the contention, pointed out that if sustained, it would constitute a practical supervision by federal organs, legislative and jttdicial, of the most ordinary and usual func- tions of the State. The Court addcds : — "The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when as in the case before us, these consetpiences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit ^Texasv. While., 7 Wallace 700, 7'25. Cf. also Connlif of Lave v. Oreyon, 7 Wallace 70; U.S. v. E. C. Knifjht Co., 15(i U.S. at j). \^^ \ Xortheru Securitiex Go. v. U.S., 193 U.S. at p. 348. = (187-2) 16 Wallace .SG. ^'p. 78. 378 THE COMMONWEALTH OF AUSTRALIA. of our institutions; when the effect is to fetter and degrade the State Governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamtmtal character ; when in fact it radically changes the whole theory of the relations of the State and Federal Governments to each other and of both those governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt."^ Even the Priv}^ Council, whose dicta are especially relied on by Isaacs J. in opposition to restraint by implication, has, when called on to ascertain the respective powers of Dominion and Province in Canada, affirmed the practice as a rule of necessity, and it is settled that in order to construe the general terms, in which the classes of sub- jects in sees. 91 and 92 of the British North ATnerica Act 1867 are described, both sections and the other parts of the Act must be looked at, in order to ascertain whether lan- guage of a general character must not by necessary implica- tion or reasonable intendment, be modified and limited." In view of some opinions expressed in recent debates in Parliament,^ it appears necessary to point out that the prin- ciple is not that every power of the Commonwealth Parlia- ment is arrested wdien it reaches the domestic commerce or the industries of a State. It does not require us to say that the power to make laws with respect to banking, or bills of exchange, or corporations, cannot affect those operations or persons except so far as they come within foreign and inter- State commerce. It admits that the operations of banking and the currencj' and obligations of bills of exchange may ^Tlie principle of tliese cases is affirmed in Hodges v. U.S., (1906) 203 U.S. 1. See also The Civil Bights Cases, (1882) 109 U.S. 1, at pp. 11, 13. - Lefroy, Legidative Power in Canada, pp. 477 et seq ; Citizens Imurance Co. V. Parsons, 7 A.C. at p. 110 ; Pusseil v. The Queen, 7 A.C. at p. 839. "P.D. 1909, pp. 1939 et seq. VALIDITY OF LAWS. 879 be wholly governed by federal law, though existing solely for intra-State business ; and that the federal law extends to the audit of accounts and the winding up of companies carrying on business in one State only. But it does require us to be assured that the federal Act is, according to its true nature and character, a law with respect to banking, to bills of exchange, or to corporations, as the case may be, and not a regulation of domestic trade or industry by means of bills of exchange, banking, or corporations. In this sense it is accepted by Higgins J. in Huddavt Parker v. Moorhead} The Interpretation of the Federal Statute. — From the interpretation of the constitutional power of the Legislature, then, we proceed to the consideration of the true nature and character of the legislative enactment. Parlia- ment cannot by affecting to legislate upon tliat whicli is Avithin its j^ower, really make laws upon that which has not been committed to it. Here the difficulty lies largely in the fact that an Act may have several aspects, in one of which, if solely regarded, it might be an exercise of power over one of the enumerated matters ; while in another it would be the exercise of power over some matters remaining within tlie exclusive power of the States Parliaments. The same difficulty may, of course, arise in regard to State legis- lation — an Act of a State Parliament may in one view be an exercise of authority upon some matter within the residuarj" power of the State Parliament, in another it may be an enactment on one of the subjects of the exclusive power of the Commonwealth Parliament. These (juestions have been of great importance in Canada,"- where the powers of Dominion and Province are generally exclusive powers, and in the United States have jjiven rise to a lar^je number of cases in which the Courts have li.id to determine whether US A.L.R. a I p. -JTi. 'See Lefroy, pp. 37'2-4'24, and Quebec v. Queen Instwance Co., .S A.C 1090. 3S0 THE COMMONWEALTH OF AUSTRALIA. Acts of the States leijislatures afFectinw trade and commerce among the States are in substance enactments of commercial regulation, in which case they would be inoperative as im- j)airing the freedom of commerce, or are within the police power of the States — i.e. their general power of providing for the peace and welfare of the community. Federal laws prohibiting the transmission by mail or the carriage on inter- state railways of lottery tickets or other things deemed injurious to public health or morals, illustrate one class of case ; State laws prohibiting the admission of paupers or criminals the other. The best illustration is perhaps to be found in the temperance legislation of Canada, as to which Lord Watson says : " There may be a great many objects, one behind the other. The first object may be to prohibit the sale of liquor and prohibition the only object accomplished by the Act. The second object probably is to diminish drunkenness ; the third object to improve moralit}^ and good behaviour of the citizens; the fourth object to diminish crime, and so on."^ In all such cases, " tlie true nature and character of the legislation in the particular instance under discussion must always be determined to ascertain the class to which it belongs."- In the Liquor ProJtibition Case} already cited, Lord Watson, delivering the judgment of the Privy Council, said : " We are always inclined to stand on the main sub- stance of the Act in determining under which of these pro- visions (of the British North America Act 1867) it really falls. That must be determined secundum suhjectam materiam, according to the purpose of the Statute as that can be gathered from its leading enactments." Then, having recited as above the several possible objects involved in the legislation under discussion, his Lordship proceeds : " These ^The Liquor Prohibition Case, 1896 A.C. 348. -Russell V. The Queen, L.R. 7 A.C. 829, at p. 840. VALIDITY OF LAWS. 381 are all objects. What is the object of the Act ? I should be inclined to take the view that that which is accomplished and that which is its main object to accomplish, is the object of the Statute ; the others are mere motives to induce the Legislature to take means for the attainment of it." The " mere motive " of the legislator is irrelevant^ ; if the true nature of his Act as disclosed by its contents is within his power, its validity cannot depend upon the motive which may be imputed to him, though common knowledge or even the legislator's own statement in the preamble may leave no doubt as to Mhat that motive was. For instance, if tlie Legislature has power to impose taxation, the validity of a Customs Act cannot depend on whether the motive of the Legislature was the raising of a revenue or protection of industries ; and a land tax will be good, even though the object aimed at is the " bursting up of large estates " rather than the raising of money. On the other hand, if the Act itself contains a scheme of legislation upon some substantive and independent matter not committed to the Legislature, its true nature and character must be determined by reference to tliat scheme, and not by the fact that, as auxiliary means of accomplishing this foreign purpose, it has utilized, by way of sanction, a power such as the power of taxation, com- mitted to it by the Constitution.- Courts are astute to prevent the use of means for doing indirectly what may not be done directly,^ and in dealing with tlie validity of legis- lation will regard the substance rather than the form.* 'Lefioj-, p. 273; Cooley's Consiiluliomil Limitations, 257; Kingston v. Gadd, 27 V.L.R. 417, 42S, per Hohoyd J. For ;ui illustration, see Veazie Bank v. Fenno, (1869) S Wallace 533. "Cf. Quebec v. Queen Insurance Co., 3 A.C. lUllU. ='Lefroy, 372, 38S ; Madden v. Jfielson and Fort Sheppard Railway, (1899) A.C. 626, at p. 628. *Per the Hi<;h Court of Australia in Deal-in v. Webb, 1 (". 1,. IJ. at p. till ; Petei'swald v. Barthy, 1 C.L. K. at p. 511. 382 THE COMMONWEALTH OF AUSTRALIA. These considerations have been strikingly illustrated in the Commonwealth by the cases of Commonwealth v. McKay and TJte King v. Barger} in whicli the High Court had to determine the true nature of an Act which purported to impose a duty of excise, but which was impugned as in substance a regulation of certain manufactures. The same principle is involved in the application of tlie Atistralian Industries Preservation Act to corporations.- The cases are considered postea under the head of Taxation and Corporations respectively. M1908)6C.L.R. 1. - Huddarl Parker v. Moorhead, 15 A.L.R. at p. 271. [383] CHAPTER IV. UNCONSTITUTIONAL LEGISLATION. An Act of Pai'liamenfc which deals wholly with matters not granted to the Legislature or with matters withheld from it, or exercises power in a forbidden way, is void. But it very commonly hajspens that the Statute merely trenches upon the forbidden o-round amoncrst a number of other thinu's which, taken by themselves, would be intra vires. The question in such cases is how far the taint extends, for it is well settled that a Statute may be ultra vires as to part only. The test is the severabilitj^ of the subject-matters dealt with. Is the scheme of forbidden legislation part of and interwoven with the lawful scheme, so that the elimi- nation of the first makes tlie second incomplete or substan- tial I}- alters its nature ? If so, to sustain the second in the absence of the first would be to convert the scheme into something other than Parliament devised, and to establish a substituted scheme for llu- scheme of the Legislature. Thus, when it is once established that some part of an Act of Parliament is invalid, the ordinary presumption in favour of the validity of a legislative Act gives way; the presump- tion then is that the whole constituted a sinsfle scheme, and it has to be shown affirmatively that there is .such an inde- 384 THE COMMONWEALTH OF AUSTRALIA. pendence of the parts as will enable what remains to be sustained without doing somethino- whieli Parliament did not intend. In the Union Label Case^ the Court held that the pro- visions of Part VII. of the Trade Marks Act 1905 estab- lishinp; a worker's mark were idtra vires as invading; the State power over domestic commerce and industry. It was argued that, as Part VII. contained a distinct and specific prohibition of the importation of goods to which a worker's label was applied witliout authorit}^, and as tliis provision if it stood alone would be clear]}- within the power of the Commonwealth over foreign trade, this provision should be separated from the rest of Part VII. and sustained, and with it, of course, all the auxiliary machinery of registration, &c. The Court rejected the contention on the ground that the result would be to bring into operation a law entirely different in its purpose and character from that which the Legislature enacted. On the other hand, in Baxter v. Commissioner of Taxa- tion- the Court had to deal with sec. 39 of the Judiciary Act 1903, whereby federal jurisdiction was committed to tlie State Courts subject to various conditions, one of which was that every decision of the Supreme Court of a State exercising jurisdiction under the section should be final and conclusive except so far as on appeal might be brought to tlie High Court. It was argued that, assuming that the '^ A. -G. for New South Wales v. Brejrery Employes Union of Xeiv Sou/h Wales, (1908) 6 C.L.R. 469. See juilgnient of O'Connor J. (pp. 545-548). Isaacs J. on this point concurs with the majority of the Court : " The same trunk, the same main idea and purpose supports them all. Sub-sec. (c) is a very important enactment, but it is clearly intended to guard against evasion of the proprietary riglits in a trade mark, and would not have been enacted if it were tliought the main purpose was unlawful. If the principal fails, its accessory, I conclude, cannot stand " (p. 559). -4 C.L.R. 1087, 1140. See also the Jumhuima Coal Mine and others v. Victorian Coal Miners' Association, (1908) 6 C.L.R. 309. UNCONSTITUTIONAL LEGISLATION. 385 condition was ultra vires, as excluding the appeal to the King in Council, the grant of jurisdiction so depended upon it as to avoid the whole scheme contained in the section. The High Court, however, held that the provisions were severable and independent. If the provision were intra vires an appeal to the Privy Council would lie with special leave, if it were ultra vires the appeal would lie without special leave. The validity of the grant of jurisdiction to tiie State Courts, with its consequential appeal to the High Court, could not be regarded as depending on such a subsidiar}" pro\ision. The most difficult class of case with which the Courts are called on to deal is where the Statute uses terms of generality which, literallj- construed, would apph' the Act to matters beyond the power of the Legislature. In such a case it is commonl}" contended, first, that the general words should by construction be restricted to matters within the power, the presumption being that the Legislature intended to act within its powers; secondly, that if they cannot in the circumstances be so limited by construction, the Act should be treated as valid and operative to the extent of the federal power, and the excess only should be treated as ultra vires. Both arguments are fortified by a consideration of the respect due from the judiciary to a co-ordinate branch of the Government which is hy its constitutional functions bound for its own purposes of action to determine provisional I3' the extent of its powers. Illustrations may be drawn from two cases in the High Court of Australia arising under the Commonwealth Con- ciliation and Arbitration Act 1904. in tlic first of these cases, the State Railway Servants Case,^ the High Court * 77i^. Federated Amalijnmated Government Railway and 'I'ramicni/ Sen-ice AsHoci'ition v. New South Walts liailway Traffic Emploi/ds' As'^ociation (1900)4 C.L.ll. 88. 386 THE COMMONWEALTH OF AUSTRALIA. held that the specific inclusion of " disputes in relation to employment upon State railways" was ultra vires as an invasion of the exclusive powers of the States. It was clear that the application of the Act to otlier cases of industrial disputes was not dependent on its application to State railways, and the effect therefore would simply be to write out the offending words. But it was then argued that the words in question would have been valid if limited to State railways as instruments of inter-State commerce,, and that the provision though not limited to or in terms referring to inter-State commerce, might and ought to be construed as applicable only thereto, and therefore valid and operative. The Court rejected the contention and cited the principal American cases on the subject.^ In the Jum- hunna Coal Mine v. The Victorian Coal Miners Associa- tion^ it was argued that the sections of the Acts per- mitting the incorporation and registration of associations of employers and employes were so widely framed as to confer a right of registration upon associations which could not possibly be concerned in an industrial dispute extending beyond the limits of any one State ; that there was nothing in the Act to confine the application of the general words within constitutional limits ; that therefore the whole sec- tion, and (because the section underlay the working of the whole Act) the whole Act, were invalid. The Court held that the presumption in favour of an intention by the Leo-islature to use general words in a sense w^ithin its con- stitutional powers was applicable to Conmaon wealth legisla- tion ; the Act clearly contemplated that an association, when registered, would be a party to a dispute within the meaning of the Act, and by definition in the Act itself, that meant a dispute extending beyond tlie limits of any one State. i.^C. at p. 546-7. -(1908) 6C.L.K. 309. UNCONSTITUTIONAL LEGISLATION. 387 Text-books and reports are full ot" cases which depend upon the presumption in favour of the validity of Statutes, and which assert that Statutes must, if possible, receive a construction which will make them operative.^ Tliis may mean either of two things — that the Court should bow to the Legislature's construction of the Constitution, if possible; or that, making its own independent construction of the Constitution, it should if possible so interpret the Statute as to bring it within the Constitution. Expressions which refer to the presumptions to be made in favour of the validity of & legislative Act are commonly used loosely without dis- tino-uishintj the two senses. The most distinguished advocate of the first doctrine is Professor Thayer,^ who declares that ii Court " can only disregard the Act wlien those who have the riijht to make the laws have not merely made a mistake, but have made a very clear one — so clear that it is not open to rational question. That is the standard of duty to which the Courts brino- leirislative Acts, that is the test wliich they apply — not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the Constitution has charofcd with makin,;i\v- Review, 129. 388 THE COMMONWEALTH OF AUSTRALIA. and it appears to introduce confusion as to the respective functions of National and State Courts in dealing with State Statutes. It involves, also, the determination of a different question, according as a Court may be giving an advisory- opinion or a judicial decision. Further, Australian experi- ence amply confirms the difficulties suggested by Daniel Webster^ — that a measure may pass the Legislature because members who consider that it is of doubtful validity liave voted for it in order that the Courts should determine the question of power, while on the doctrine suggested the Judo-e holds it valid not because he considers it is intra vii^es, but because the Legislature has passed it. Even if considerations of respect for the Legislature are to enter into the matter it is not so obvious that it is more offensive for the Court to say in effect : " We disagree with the opinion you have formed in this matter," than to say : " The inter- pretation which you have put upon the Constitution is one which could not possibly be put on it by reasonable men." And if Professor Thayer's principle were the true one, we might expect to find that, wliere the opinion of Congress is shared by three or four members of the Supreme Court, as has been the case in many of the constitutional cases in recent years, the majority of six or five Judges who are of opinion that the Act is ultra vires would feel themselves bound to withdraw their opinions and sustain the Act. It is needless to say that we do not find this. The true view, it is submitted, is tliat the Courts, having to determine tlie matter before them according to law, are charged with the independent duty of interpreting for themselves the meaning and extent of tlie power conferred by the Constitution. If after this independent consideration, the Court is unable to determine as between two competing constructions of the ^The Charles River Bridge Case, 7 Pickering 344 (Mass.). UNCONSTITUTIONAL LEGISLATION. 389 power, the presumption in favour of validit}'' will operate to give effect to that construction which sustains, rather than to that which avoids, the Act under review. The more connnon application of the doctrine of presump- tive validity is to the Statute rather than to the Constitution. Perhaps no more striking illustration can be found than the decision of the Privy Council in McLeod v, A.-G. for iVeio Soath Wales} In that case, a provision in a Statute of New South Wales relating to bigamy, copied from an English Act, declared that the offence was constituted " wheresoever such second marriage takes place," and the Privy Council, holding that a Colonial Legislature had no power to give jurisdiction to its Courts over crimes committed outside its territory, and that every pr-esumption must bo made in favour of the validity of an Act, considered that the words quoted must be limited to New South Wales.- The rule concerning the favourable construction of ijoneral words was laid down in the Employers Liability Act Cases^ in terms which derive additional force from the fact that they were uttered in a dissenting judgment affirming the validity of an Act whicli was held to be ultra vires by a majority of the Court. Moody J.-* admitted that the cases established the proposition that " a single statutory provision is void if it is expressed in general words so used as clearly to manifest the intention to include within these words sub- jects beyond the constitutional power of the law making- body. The Courts have no power to read into such a pro- vision an exception for the purpose of saving that which is MKS91) A.C. 455. -The Slime words ill the lOiiglish Act were in tho Trial of Earl Rusnelly (1901) A. (J. 446, lield to extoiul to iiiarriiige oiUsiile tlio l^ritisli Domiiiions, imd Afc Lead's Case was explained by reference to the limited powers of a Colonial Lfij;islature. ='(1907) -207 U.S. 463. 'p. 51,-). 390 THE COMMONWEALTH OF AUSTRALIA. left from condemnation."^ But he considered that in all cases where general words had been construed as embracing matters idtrd vires, the Act was one which could not be limited without violating the obvious intent of Congress as ascertained by the necessary meaning of the language employed, they were cases in which "no other meaning w^as pos.sible." In the opinion of the learned Justice, general words may, in view of tlie context and with the aid of the light of the Constitution, be restrained in their meaning with the purpose and effect of giving them such a construction tliat the Act may be sustained as a legitimate exercise of the legislative power ; and that they should be so treated is not a mere rule of construction, but is a rule of policy and law. Accordingly, the learned Justice, with Harlan, M'Kenna and Holmes JJ., was of opinion that the general words of the Federal Employers Liability Act, applying it to all per- sons entrao-ed in inter-State commerce, must be understood to apply to such persons only in so far as they were engaged in that commerce, and did not extend to them as and wdiile engaged in the internal commerce of a State. The majority of the Court, on the other hand, considered that Congress had expressly declared the class of persons to whom the Statute was to ajDply, that it had done so in unambiguous terms, which, according to their nature and proper interpretation, extended to cases beyond the power of Congress ; and that these terms could only be limited by introducing an excep- tion which Congress had not thought fit to insert. In this case the difference between the majorit}^ and the minority is occasionally expressed in terms which suggest a difference in principle. But probably no such difference existed. The majority would certainly accept the proposi- tion that, in construing a legislative Act, regard must be had ^See also A.-G. for Xeio South Walts v. Bremery Employes Union of New South Wale^, 6 C.L. R. 469, per Isaacs J. 4AM UNCOXSTITUTIONAL LEGISLATION. 391 to the powers of the LegisUiture ; the minority with equal certainty would agree that an interpretation plainly ditiering from the intent of the Legislature may not be resorted to to force a Statute within constitutional limits. The question tlien becomes one of particular application, and even there the whole Court was probably agreed that there must be something in the terms of the Act sufficiently connecting it v.'ith some federal power to enable the Court to construe the Act by that power, for the minority dis- tinguish the case at bar from a prior and very recent decision in Illinois Central Railroad v. McKendree^ on the ground that in that case there was nothing ir. the enactment in question to indicate the invocation of an}^ power of Congress, while in the Employers Liability Act there was an express advertence to the inter-State commerce power, from which reference they considered it proper to infer an intention to limit the enactment by that power. So also in the Jumhunna Gase^ the general words sustained were found in a Commonwealth enactment which was plainly referable to the constitutional power over industrial disputes extending beyond the limits of any one State, and the pre- sumption was that Parliament intended its words to operate within tlie limits of that power. The case is different from that in which the legislature casts its net at large, and leaves to the Court the task of finding some power to which tlie words used can be applied in a restricted sense. This was the attempt which failed in the State Raikvays Servants Gase^^ where the Act in itself had no apimrent relation to inter-State commerce, and where, therefore, there was no reason to suppose that Parliament intended that its general words should be applied to inter-State commerce only. Where the Court determines that general words do accord- '(1000) 20:] U.S. 514. "(1908) 6C.L.K. 309. ='(1906)4 C.L.R. 488. 392 THE COMMONWEALTH OF AUSTRALIA. ing to their proper construction embrace matters beyond the constitutional power of the Legislature, it does not appear that there is any room for the application of the rule of severance ; consequently the whole provision fails. It is impossible to give legal eftect to the terms employed by the Legislature in the sense wlilch the Legislature intended. To give them any otlier meaning would be to re- write th« Statute, to separate what the Legislature united. In the Employers Liability Gases,^ the whole Court was agreed that the only question was one of construction, and that it was impossible to sustain the Act in relation to inter-State commerce, if its general terms as properly construed ein- braced intra-State commerce as well. In the Union Label Case,^ the same principle was observed. In the case of United States v. Jit Toyj^ the rule is laid down clearly and unambiguously. The general words of an Act of Congress had been applied by the Supreme Court in more than one case to matters within the admitted control of Congress. The case at bar was one in whicli it was sought to make a new application of the Act to facts which were clearly within the general words, but it was argued that these facts were beyond the control of Congress, and that pro tanto the Act was void. To this it was replied that the general pro- vision having been already sustained by the Court, it must be treated as o-ood to the whole extent of its ambit ; that it could not be treated as partly good and partly bad. The Court said : — " It is established b}^ the cases cited that the relevant portion of the Act .... is not void as a whole. The Statute lias been upheld and enforced. But the relevant portion being a single section, accomplishing all its results by the same general words, must be valid as 1207 U.S. 463. -(1908) 6 C.L.R. 469. See per O'Connor J. at pp. 546 et seq. 2 198U.S. 259, 263. Ill UNCONSTITUTIONAL LEGISLATION. 893 to all that it embraces or altogether void. An exception of a class constitutionally exempted cannot be read into these general words merely for the purpose of saving what remains." The case of Fox v. liohhiiis,^ presented the question of the •extent of invalidity in a peculiarly difficult form. A West Australian Statute makes it an offence to sell any li(juor without a proper licence, and establishes three kinds of licences — a general publican's licence at a fee of £50, giving the right to sell beer, wines and spirits ; and two licences restricted to the sale of the produce of West Australia — a wine and beer licence at a fee of £5, and a Colonial wine licence at a fee of £2. The defendant, a person having a Colonial wine licence, was charged with selling Victorian wines without having a general publican's licence, and the case was dismissed on the ground that the law, in so far as it discriminated between tlie produce of different States, was prohibited by sec. 92 of the Constitution. What then is the position of persons desiring to sell in West Australia wine produced in other parts of the Connnonwealth ? Ought they to get a Colonial wine licence, paying £2 there- for ? Or, on the other hand, can they sell such wines without any licence at all ? Higgins J. takes the first view ; Isaacs J. the second ; the other members of the Court abstain from expressing any opinion, save that Griffith C.J. thinks tluit a good deal may be said in support of either contention. The opinion of Higgins J. is based on the fact that the sole vice of the lecrislation is its discrimination, and that the most that can be contended fur l)y .sellers (A wine is that I hey shall be put on as good a footing as sellers of Australian wine. But this construction savours rather of the invention of a new licence never contemplated by the Legislature at all. Isaacs J. contemplates aiidllior possibility — that the 1(1909) 8 C.L. It. 115. 394 THE COMMONWEALTH OF AUSTRALIA. provision for Colonial wine licences is by reason of its^ discrimination, wholly void, so that all sellers of wine, West- Australian or other, would be required to obtain the general publican's licence with its fee of £50. But he points out that tlie vice of discrimination springs not from this provi- sion alone (which by itself merely imposes a burden on sellers of West Australian wine), but from the combined effect of the licensing provisions. To take some of these,, enacted for one set of conditions, and apply them to a different set of conditions, was to undertake the task of remodelling legislation. The Act must operate in accord- ance with its terms as far as it could constitutionally do so ; so far as it could not, it was inoperative. In the result, there was no lawful provision in the Act relative to licences for the sale of wine, the produce of other States than Western Australia. Tlie fact that tlie validity of Statutes is brought under the consideration of the Courts, not in virtue of any direct power of review, but merely as incident to the administra- tion of justice, involves (as already observed) the rule tliat the constitutional character of the Stattite can be raised only in some litigation competently before the Court in which it is sought to apply the Statute as a law governing the case. It may not, in all cases, be easy to establisli such a direct interest as constitutes a right to have the adjudication of the Cotirt, and it is established in Australia, as in the Unitiid States, that tlie Court " will not entertain abstract questions of law or give an opinion as to the power of the Common- wealth to enact certain legislation where the opinion cannot ])e followed up by an effective order." Therefore, when an action was brought to restrain the registration of a workers' trade mark, the withdrawal of the application for registra- tion precluded the consideration of the question whether Part VII. of the Trade Marks Act was intra vires, in spite UNCONSTITUTIONAL I-EGISLATION, 395 of the power of the Court, under its Rules, to make declara- tory orders.^ Some time afterwards an action was brought •by the Attorney-General for New South Wales, at the rela- tion of four brewery companies, who were also joined as plaintiffs, against tlie Brewery Employes Union of New South Wales and the Registrar of Trade Marks for the Commonwealth, for an order cancelling the registration of the defendant union's mark, and an injunction to restrain the defendant Registrar from keeping a register of workers' trade marks. In this case,- there were plaintiffs claiming an order which, if made, would be operative and effective against the defendants, and the question was whether the plaintiff's — the brewing companies as individuals affected, or the Attorney-General as representing the public — had a locus standi to initiate litigation for the purpose of obtaining the words prayed. A majority of the Court (Isaacs and Higgins JJ. dissenting) held that the legislation, if valid, did in fact impair certain common law rights of the brewing companies, first, as interfering witli their freedom to carry on their business in their own way, by compelling them to elect whether thev would or would not use the mark registered by the defendant union, with its attendant consequences ; secondl}', as preventing the plaintiff's from registering, should they desire to do so, a mark similar to that of the defendants. These rights of the plaintiffs were protected by law, and tlie plaintiffs were accordingly entitled to the decision of the Court on the question whetlier acts which amounted to an interference with tliem were legally justified. The decision of the Court also su.stained the locits standi of the Attorney-General for New South Wales. The ^ Bruce v. Commowneahh Trade ^f(^rk■i Label Association, (1907) 4(;.].. \l. ir)69, where a nuinbef of Americ.in cases are refeneil to. "A.-G. /or Xew South Walu'^ v. Breicery EmployiU Union of 2^eio South Wales, (l'908)6C.L.K. 469. 396 THE COMMONWEALTH OF AUSTRALIA. case was not one in wliich the State of New South Wales, as a juristic or corporate entity, claimed any right. The Attorney-General claimed to appear in his capacity of repre- .sentative of ' tlie public ' or ' the community,' on the same ground on which he is heard when corporate bodies or public officers and authorities are assuming powers in excess of those committed to tliem. The difficulty in this position lies in the fact that in a unitary government the Attorney- General appears on behalf of the sovereignty or community which has created the power alleged to have been trans- cended; the grant of tlie Crown, or of a Statute, has been abused, and the officer representing the communit}^ from which the authority springs interferes on its behalf. In the present case neither the office of Registrar nor his functions of registering marks sprang from State law, and it was strongly urged that the only competent representative of the public in tlie present circumstances was the Attorney- General of the Commonwealth. The majority of the Court (Higgins J. dissenting), however, considered that where the question was not whether the authority committed by tiie Statute was exceeded, but wliether the Statute itself was competent to grant the autliority, then as the case became one whether there was not an assumj^tion of power which the States alone could give, and had not given, the Attorney- General of the State was competent to come in on its behalf and challenge the authority. The case was thus put by Isaacs J. (who on this point concurred with the majority) : — " If under the assumed powers of a federal Statute in fact invalid, some usurpation of State administrative or judicial authority is attempted in the State, it would be a trespass on State territory, and the Attorney-General of the State, as representing the King, could appl}^ to restrain it. His rights in this respect would not be lessened merely because a similar usurpation was asserted over the territory of ifej UNCOXSTITUTIOXAL LEGISLATION'. 397 other States. And if there is a legislative usurj^ation, if an Act of the Commonwealth Parliament unauthorized by the Federal Constitution occupies part of the legislative field exclusively reserved for the State of New South Wales, and by its commands, operative in all parts of Australia, pre- scribes to the citizens of that State the rules of conduct they must follow under penalt}-, I am of opinion that the case is parallel with that of administrative and judicial intrusion upon State territor}-. The Attorney-General for a State in such case does not depend upon the infringement of rights possessed by individuals as Australians under a federal Statute, but protects on behalf of the Crown those rights and functions with which the King, guided solely by his State representatives and advisers, is invested in respect of the State " (pp. 557-8). [:^98] CHAPTER IV. THE COURTS AND EXECUTIVE ACTION. It is a characteristic of the English and American system of public law that public officers are in respect to their official acts subject to judicial control. They are subject to the ordinary laws of the land, and enjoy no personal immu- nit}^ from proceedings civil or criminal, if, transcending the bounds of their lawful authority, they invade some private rio'ht or commit a crime. This is the " rule of law " which Professor Dicey 's Laiv of the Constitution has made a com- monplace amongst us. But even more significant is the kind of control which the Courts ma}^ exercise over the official act — compelling its execution by onandamus, forbid- ding it by injunction, annulling it by certiorari (a pro- cess the extent of which has bee]i very recently demon- strated),^ in the special case of persons in custodj^ releasing them on habeas corinis, and determining the title to office upon quo warranto. In these cases the Courts exercise a jurisdiction which is extraordinary and peculiar, com- parable rather with the controlling and supervisory powers in an administrative hierarchy than with the ordinary powers of a Court in the determination of conflicting rights in the course of litigation. This special character of English Courts has received less notice than it deserves, and here as "^Rex V. Woodhouse, (1900) 2 K.B. 501. THE COURTS AND EXECUTIVE ACTIOX. 899 ill some other matters connected with our public law it is American writers Avho have shown the way. It may be permitted to mention the works of Professor Goodnow on Comparative Administrative Lata and Aoneincan Adminis- trative Latu. In this place no more is required than to consider liow far the exercise of judicial control is affected by the existence of a dual sj^stem of government over the same persons and territory.^ So far as concerns the merely remedial and punitive action of judicial j)roceedings, it was hardly affected bj'' the Constitution itself. I'he laws of the States in respect to civil wrongs and crimes remained, and with them the jiu'is- diction of the State Courts.- In the United States, if a federal officer was alleo-ed to have connnitted a tort or a crime he might be sued or prosecuted in a State Court, notwithstanding that his act was committed under the alleged authority of the Constitution or of an Act of Con- gress, unless Congress either connnitted the matter exclu- sively to the federal Courts or provided for its removal from the State to a Federal Court, as one arising under the Constitution or the laws of tlie United States.^ So. in tlic Commonwealth, tiie States Courts had cognizance of such mattersunder their ordinary jurisdiction initil the Judiciary Act 1903, sec. 39, transformed llic jurisdiction belonging to them under State law into a federal jurisdiction exercised by them on Ijehalf of the Comnionwealtli. In America ihe general rule is limited by the necessity of preserving the independence and supremacy of federal action. The operations of the Federal Government may 'On tliis subject in the United States reference nuiy usefully be made to 9 Colnmlna Ijaiv lievieiv CSlixy, 1909), p. 397, "The Jurisdiction of State aiul t'ederal Courts over Federal Officers," by James L. Bishop. -/.'. V. Bamfonl, (1901) N.S.W. 1 S.R. .S;57 ; 7 A.L.K. 89 (Current Notes). •'.See Hare's Contlitutional Law, p. 1193; Tennesxee v. Davis, (1S79) 100 U.S. 257. 400 THE COMMONWEALTH OF AUSTRALIA. not be interfered with by State authority. As early as 1821 it was held by the Supreme Court of the United States that a State Court could not issue a mandamus to federal officers to perform a federal duty,^ and this principle extends to prevent the issue of injunctions to federal officers claiming to act under the authority of the Constitution or federal laws."-^ Similarly, a State Court " cannot issue any process tending to suspend the execution of an Act of Congress or take goods or persons that have been seized under an authority from the general (i.e., Federal) Government."^ The immunity of the federal executive from the interference of the State Courts is best exemplified by the case of the writ of Jiaheas corpus. Here it is well settled in America that the State Courts are powerless to release any person held under federal restraint, whether it be judicial or (as in the case of persons under military discipline) executive. That is to say, it being made to appear to the State Court that the person is held under colour of federal authority, the State Court has no power to inquire further as to the law- fulness of the restraint. It then " knows that the prisoner is within the dominion and jurisdiction of another govern- ment, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States."* It is immaterial that there is no Federal Court ^M'Ohuig V. Silliman, 6 \Vlieaton 598. ^See Brewer v. Kidd, (1871) 23 Michigan 440, 446 ; In re Turner, (1902) 119 Fed. P<,ep. 231, cited 9 Columbia Law Review, at p. 416. "Hare, American Con>,titutional Law, at p. 1211. '^Tarble^s Case, (1871) 13 Wallace .397, 409-10. It had been previously held in Ableman v. Booth, (1858)21 Howard 506, that State Courts could not discharge persons in custody under the order of any Federal Court. The State Courts, keeping within the limits of that decision, considered themselves entitled to release persons improperly in federal custody in any other case than that of detention by order of a Court. TarbleU Case holds that this jurisdiction also is unlawful. See 9 Columbia Law Review 404-406. ]; THE COURTS AXD EXECUTIVE ACTION. 401 witli authority to order release. It is not matter for sur- prise that the State Courts were for long unwilling to acquiesce in a position which required them, armed with tlie writ of liAiheas corpus, to stay their hand on the mere claim or colour of authority and refrain from investigating the actual legality of detention. Til tlie Commonwealth the principle of the American cases was accepted by the Supreme Court of New South Wales in Ex vdi'te Goldring} liolding that it had no power to issue a DKvndamuH to a federal ofhcer to discharge a duty that he owed to that government. But wo arc fortunately released from the embarrassments and inconvenience of the American system by the fact that the Constitution empowers the Comnionwealtli to invest the State Courts with federal jurisdiction, and that by the Jiidiciar;/ Ad IDOothis power is e.Kercised to its fullest extent, except where exclusive juris- diction is actuallv connnitted to the Hiirh Court.- The Hio;h Court alone can issue a mandamu>i or a prohibition to an officer of the Commonwealth oi- a Federal Court (Judicature Act, sec. 8(S). But to all other cases — mjunction, certiorari, habeas corpus, nnd quo icanxinto — the federal jurisdiction of the appropriate State Court would attach under sec. 39 of the Judiciari/ Act. Thus there is no gap in judicial control over the executive — no case analogous to that exist- ing in the United States, where no mandamus or certiorari can issue to federal executive authorities, the State Courts being excluded under the doctrine just considered, tlie Sujn-eme Court exclmlcd because Congress \\\i\y not connnit to it any original jurisdiction other than that given in the Constitution :■'■ wliileas toother Federal Courts, Conj^ress has ni)t in fact conferred on them power to issue these writs.* Ml!)();^)'2 S.i:. (N.S.W.) -JGO. See also Ah Sheumf v. Limlhfrff, (190(5) V.L.R. til'.i, per Cussen J. :it j). S'2(5. ^Ak Sheini'j V. Lindber,/, (19(t6) V.L.K. IVIli. "Marhui-y v. Madiwn, (lSO:i) 1 Crancli 137 ; Tliayer li»7. *.See 9 Columbia Laic lie.view 399, 400, -418. Cc 402 THE COMMONMVEALTH OF AUSTRALIA. The power of the Coininonwealth Judicature over the official acts of officers of the States is, of course, determined in the first place by tlie fact that the original jurisdiction of tlie Commonwealth is limited to specific matters ; secondly, by the extent to which the Constitution or tlie Common- wealth Parliament has committed jurisdiction to iho par- ticular Court. It will be seen^ that the Commonwealth has little power to impose official duties upon State officers, and therefore the occasion for the issue of a •mandamus to executive officers of the State to perform duties towards the Federal Government is rarely likely to arise. But it may frequently liappen that the Conunonwealth Government is concerned to prevent or annul acts by State officers in alleo-ed infraction of the Constitution or Conunonwealth laws, and for this purpose the certiorari, the injunction and the habeas corpus would be appropriate means of wliich that Government mio-ht avail itself. In such cases it can- not affect the matter that the officer was acting under the authority of the supreme Executive or the Legislature of the State, or that the substantive effect of the order is to control the political action of tlie State itself.- And in America if the matter be one in which the State is not exempt from jurisdiction (as when sued by another State), a suit for injunc- tion against unlawful acts done by agents who are merely pursuing an alleged authority conferred upon them by the State, may be jDroperly brought against the State itself ; " the action complained of is State action and not the action of State officers in abuse or in excess of their powers."^ This in Australia is a matter of a good deal of importance, for in place of the Eleventh Amendment, which in America ex- ^Part VII. — Relation.? of Coimnouwealth and States. -Osborii V. U.S. Bank, 9 Wlieaton 738; Painoyer v. McConnaijhy, 140 U.S. 1 ; Belknap v. Schil>l, 161 U.S. 10. '^Kansas v. Colorado, 185 U.S. 1-25, 142 ; Missouri v. Illinois, 180 U.S. 208. r^i . 1 THE COURTS AND EXECUTIVE ACTION. 408 pressly recognizes the iinniunity ot" the States from suits by individual citizens, the Commonwealth Constitution declares that tlie Parliament may make laws conferring rights '" to proceed against a State in resj)ect of matters within the limits of the judicial power" (sec. 78), and this power has been exercised in tlie Judiciary Ad 1903, Part IX. The question whether a person is really an olHecr or agent of the State, so as to make his action that of the State itself, is another and difficult question which is elsewhere referred to.^ From this fact — that in Australia the States are more completely justiciable than they are in the United States — there is in the ComnKJiiwealth less sio-nificance in the rule that where the State is not under the Constitution a justici- able part}', actions and suits against lu'i- officers will not be entertained where their true nature and effect is to control the use or possession of property in the hands of the State through its officers, or to compel the observance by the State of its obligations.' The principle is, however, connnon to both s\^stems, that where the law imposes a duty upon the Gov^eiunmuit, that duty is not to be enforced by proceedings against the officer or servant unless there is also an inde- pendent relation between himself and the com[)l;iinant imposing a duty towards the complainant distinct from that duty which the officer owes to his government.-^ "The general princi})le, not )nerely applicable to mmtdmniis, but rinniincr throuirh all the law. is ihat when an obliiration is cast upon the })rincipal ami not upon the serv^ant, we cannot enforce it against the servant as long as he is merely acting 'See pp. 415 et aeq. - litlkiiap V. Schild, 161 U.S. 10, and cases tliere cilcd. See also Columbia Law Revitw, vol. 7, p. 009, and vol. 8, p. I8.S. ■'' 7'/ie Queen v. Lnnh Goyiuni'isinnfi.r.i of the Treasuri/, (IST-) Lit. 7 *}.]'>. 387 , Armytnije v. Wilkinson, (1878) L.R. 3 A.C. 355. 404 THE COMMONWEALTH OF AUSTRALIA. as servant."^ This doctrine applies, therefore, not merely where the remedy against the servant, if given, would be a means of attacking a principal who is not justiciable (as in America, by proceedings against State officers), but also where the princi])al — the State — may himself be liable to proceedings to compel the fulfilment of his duties,'^ as in Australia. In conclusion, it may be remarked that, great as is the control exerciseable directly or indirectly by British Courts over acts based upon alleged autliority, and over neglect or failure to perform a legal duty, it is a power which has some limitations. It has been already pointed out, in considering the action of the Courts in relation to legislation, that it is not in all cases easy to bring doubtful legislation to the test of judicial decision. There are cases in which, though tlie Constitution or a law may impose a duty upon an organ of government, there are no means of compelling the perform- ance of that duty by action in the Courts. Thus, the pro- vision of sec. 88 in the Constitution that uniform duties of customs should be established within two years, was plainly directory, a " dut}^ of imperfect obligation." No Court, it is submitted, could be called on to enforce the duty of the Commonwealth, under sec. 119, to "protect every State ao-ainst invasion," and no ciction could be maintained for failure of performance. In such cases, the sanction is political merely. Again, tlie duties of a State Governor, under sec. 12 of the Constitution, are imposed upon him as the constitutional head of the State, and their performance is secured by political sanctions merely.^ The cases upon inandamus afford abundant illustration of the limits which ^Ib., per Blackhuni J., at p. ,398. "'In re Nathan, (18S4) 12 Q.B.I). 461. ^The. h'in'j V. Th" Governor of South Australia, (1907) 4 C.L.R. 1497, see esp. Llll. THE COURTS AND EXECUTIVE ACTION. 405 are set to tlie use of this coercive jurisdiction. In Ex 'parte Wallace,^ the Sujjreme Court of New South Wales refused a mandci'miLs to Customs officers to release goods of an importer, held by them for non-payment of duty wliich had no other warrant than the ordinary resolution of the Legis- lative Assembly for the protection of the revenue, tliough it is clear law that no tax may be taken except by the authority of Parliament. In Horivitz v. Connor^ the Higli Court held that mandamus would not lie to the Governor in Council of a State. And it is well established that man- damus will not lie to the Crown itself, or (as has been seen) to officers of the Crown to compel them to pay money due from the Crown to claimants, tliough the Court is satisfied that the claimants are entitled to the money as against the Crown, and that there is no other means by which the money can be obtained.^ '(1S92) K^N.S.W. 1. -'{1908) 6 C.L.R. ;5S. •^li. V. CommiHuiontrs of the Treasury, (1872) L.Fl. 7 <.^. Ix 3S7. See ante, pp. 403-4. [40()] PART VIl-COMMONWEALTH AND STATES. CHAPTER I. FEDERAL AND >STATE RELATIONS: THE SUPRE- MACY OF COMMONWEALTH LAW. In a federal Constitution it is inevitable that the two govern- mental authorities should touch each other at man}^ points. There is consequently some friction, which may be lessened, thougli it can never be entirely removed, by the accurate definition of their spheres. The great achievement of tlie federal form of government is tliat it has been able to reconcile the conflicts of independent governments by an appeal to law which both the parties recognize as binding, and that it has provided means for the authoritative deter- mination and enforcement of tliat law. It is in this respect that the conflicts in a federal government differ from the otherwise not dissimilar conflicts of tlie Middle Age — that the}' recognize the supremacy and unity of the state and of law. The first and most obvious of the conflicts is that between the two sovernments as organs of legislation; another is the incidence of the legislation of the one upon the political organs and agents of the other, or upon the other considered FEDERAL AXD STATE RELATFOXS. 407 as a juristic entity. There are conflicts of their executive authorities, complicated in Australia by their respective relations with the Imperial Government ; and finally there are the relations between the judicial organs of tlie Federal Government and of the State Government. The Supremacy of Commonwealth Law. — The most marked feature of a federal government as distino-uished from the confederate type is that it acts through all its organs directly upon the individual citizen, and not through mandates addressed to the State Governments. The Statutes of the Federal Legislature, therefore, are laws establishing immediately rights and duties (see Commonwealth Consti- tution Act, sec. v.); and as there cannot be two concurrent authorities upon one and the .same matter it follows that the federal power is, so far as it extends, either exclusive or paramount. Li the ca.se of the Commonwealth Constitution, some of the powers of the Commonwealth Parliament are of the one class, some of the other. In a few cases the nature of the power granted is such as to be capable of existing concurrently in both governments ; of this, the power to impose taxation is the most obvious, though not the only, example. The main princii)le of the Con.stitution on this matter is that tiie mere grant of a power of legislation over anj^- subject to the Commonwealth Parliament does not derogate from the power of the State Parliament to deal with the same subject. If, then, any law of a State which is in ipies- tion is one whicli wuuld have been valid and operative if ])assed by the Parliament of a Colon}' before federation, it will have the .same validity and the .same extent of operation that it \vt)uld then have had, except so far as the Constitution declares the power of the Parliament of the Commonwealth to be exclusive or witiuiraws the power from the States (sec. 107). Where both Legislatures have exercised power 408 THE COMMONWEALTH OF AUSTRALIA. over a subject which is common to both of them, the posi- tion is dealt with by sec. 109, whereby " wlien a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall to the extent of the inconsistency be invalid."^ In sncli a case the State law fails, not because it is ultixt vires or unconstitutional, but because its operation is over-ridden, barred by tlie para- mount authority of the national Legislature.'' The rule, clear enough in itself, is not without some diffi- culties in its application.^ In the first place, it was suggested at one time in the United States that the I'ule of supremacy only applied where both Legislatures were acting under the same head of power. For instance, Congress makes a law which is valid as a regulation of foreign or inter-State com- merce, and that rule is paramount over all commercial regu- lations of tlie State. But if the law comes into conflict with a State Statute which is valid, not as a regulation of com- merce, but as an exercise of " police power," tlie case, it \vas said, is diflerent. Congress is given no power over police, and the case is one of two independent authorities each acting within its own sphere. Hence arises a " conflict of equal opposing forces." This was one of the arguments in Gibbons v. Ogden,^ and was disposed of by the decision that the supremacy of the laws of Congress extends over all laws of the State made in whatever caj^acity or under whatever head of power.^ ^See D'Emdeji v. Pedder, 1 C.L. R. at pp. 96, 111 ; Baxter v. Commit- HionerH of Taxation. (N.S. W.), (1907) 4 C.L.K. at p. 11-J9. Cf. The Wood- wo7-kers' Case, 15 A.L.E. , per Isaacs J., at p. 398. "See Hare, American Constitutional Laic, p. 98. '^E.g. the position suggested by tlie decision in the Federated Sawmillers Association v. James Moore a- Sou (The Woodtcorkers' Case), (1909) C.L.R. , 15 A.L.R. 374, of different minimum rates of wages fixed by different authorities. See also per Isaacs J. at pp. 395-G. *9 Wheaton 1, 210. ^ ^See also Si7inot v. Davenport, 22 Howard 227 ; The Woodworkers' Case, 15 A.L.R., per Isaacs J., at pp. 396-7, 398. FEDERAL AND STATE RELATIONS. 409 While it is declared to be a settled rule that " a Statute enacted in execution of a reserved power of the State is not to be recfarded as inconsistent with an Act of Contrress passed in the execution of a clear power under the Con- stitution unless the repuonance or conflict is so direct and positive that tlie two Acts cannot be reconciled or stand together,"^ it is clear tliat there may be " inconsistency " without a conflict of the v'ery terms of the Acts. " The two laws may not be in such absolute opposition to each other as to render the one incapable of execution without violating the injunctions of the other ; and yet the will of the one Legislature may be in direct collision with that of the other."- When the Commonwealth Parliament has made a law on some matter committed to it, it mav well be intended that the law should be exhaustive of regulation on that subject. In such a case, the whole tield of legisla- tion is covered, and State laws making further regulation of the subject are inconsistent with the exclusive purpose of the Parliament as disclosed in its legislation, and are inoperative. Thus, where an Act of Congress recjuired vessels engaging in the coastal trade to take out a licence and ein-ol. and a State Act required the masters of vessels navigating the waters of the States to furnish statements of the name of the vessel, her owner, liis residence, and the nature of the interests in her, it was held that there was an inconsistency between the evident intention of Congress that its con- ' .Vissojtri ,i-c. Rh/. v. Ilabtr, (1S97) 10!) \J.^. at p. G'2^^, citing Sinnot v. Davenport, 22 Howard at p. 243. -Per Washington J., Houston v. Moore, 5 Wlicaton 1, 21-22. See also Pri(i. ^'.See Dicey, Conflict of Latvs, Isted. , cap. xvi., American Notes, p. 4."J4. '^ Hanky v. Donahue, 116 U.S. 1, 4. 'IS Walhice, 457, 462, 46:^. 480 THE COMMONWEALTH OF AUSTRALIA. 2"ave a o-eneral validity faith and credit to them as evidence. No execution can issue vipon such judgments without a new suit in the tribunals of other States. And they enjoy not the rio-lit 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 judg- ments recovered under such penal laws.^ 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 International Law. In a sovereign State, however, these doctrines may be varied or excluded by the action of the Legislature ; the provision in the United States Constitution preS'ents 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. In the first session of the Commonwealth Pai'liament two imj)ortant Acts were passed upon this subject. The State Latvs and Records Recognition Act 1901, embodies the American doctrine in sec. 18, which declares that " all public acts, records and judicial proceedings of any State, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office wnthin the Commonwealth as they have by law or usage in the Courts and public offices of the State from M1SS7) Wisconsin v. Pelican Insurance Co., 127 U.S. 265; (1S92) Huntington v. Attrill, 14G U.S. 657- SUBJECTS OF LEGISLATIVE POWER. 481 whence they are taken." It provides that all Courts within the Commonwealth shall take judicial notice of all Acts of tlie Parliament of any State (sec. 3); of the seal of any State (sec. 4), and of the signature of various State officials (sec. 5) ; it prescribes modes of proof of certain public docu- ments (sees. 6-11), and matters (sees. 12-16), and of judicial proceedings (sec. 18). Finally, the provisions of the Act are to be in addition to and not in derogation from any powers existing at common law, or given by any law at any time in force in any State (sec. 19). Tiie Service and Execution of Process Act 1901^ deals with three matters — process other than the execution of judgments ; execution of warrants and writs of attachment ; enforcement of judgments. As to service of process, while sec. 4 declares that a writ of sunnnons issued in any part of the Commonwealth may be served in any other part of the Commonwealth, sec. 11 limits further proceedings in cases where no appearance is made on behalf of the defendant to a number of specific cases already sufficiently familiar in tliat branch of procedure known as " Service out of the Jurisdiction." A judgment given in such a case is declared to have the same force and effect as if the writ had been served in. that vState or part of the Commonwealth in wliich it was issued (sec. 12). Sec. 13 cautiousl}- provides that this part of the Act shall not enlarge the jurisdiction of any Court ; therefore, wlien the residence or presence of the defendant witliin a given territory is a condition of the jurisdiction of a Court — as it commonly is in the case of inferior Courts — the Act will effect nothino". Where, on the other hand, the jurisdiction is deemed to be general, as in 'Tliis Act is the subject of an interesting article in the Convnonireallh Law Rp.vie.ir, October, lUO.'i, p. IS, by Mr. D. (1. Ferguson, who queslions the validity of some of its provisions. The subject is furtlier considered by Mr. Paris Nesbit in Commomuealth Levi) Ixen'cir, June, 1904, and Mr. T. R. Kavin in Gomniontrtalth Law Revinc, November-December, 1904. Hll 482 THE COMMONWEALTH OF AUSTRALIA. the case of the superioi- Courts of common law,^ the Act, though it may not extend to any cases not provided for by State laws, gives to service out of the jurisdiction a new character : every such service is converted from a mere notice of proceedings into an official act of the same nature, and giving rise to the same consequences, as if it took place in the territory from which the writ issues. By sees. 14-16 provision is made whereby other process in courts of record, wi-its of summons for alleged offences, and subpoenas in civil or criminal proceedings, may be served in any part of the Commonwealth, guarded however, in the case of subpcienas by the requirement of the leave of the Court. By Part III. of the Act warrants issued in any State or part of the Commonwealth for the apprehension of a person charged with any offence there, or against wdiom an order for the maintenance of w^ife or children has been made, may be endorsed in any other State or part of the Common- wealth for execution there.- The jDerson apprehended shall be brought before a justice of the peace, who may order his return or admit him to bail ; if it be made to appear to the justice of the peace, or to any Judge of the State, that the charge is of a trivial nature, or that the application for return is not made in good faitli in the interests of justice, or that for any reason it would be unjust or oppressive to return the person either at all or until the expiration of a certain period, the Justice or Judge may discharge the person or make such other order as he thinks just^ (sec. 18). This part of the Act may be compared with the (Imperial) ^As to Courts of Equity, we must not forget that "equity acts in personam " luis been treated as a maxim of jurisdiction. But see Dmhr v. Atnslerdamsch Trustees Kanloor, (1902) 2 Ch. 132. ^See also Service and Execution of Process Act 1905— provisional war- rants. Tor an illustration of the exercise of this power by a Judge, see King v. Boyce . 484 THE COMMOXWEALTH OF AUSTRALIA. International Law as administered in our Courts, would entitle the judgment to recognition elsewhere : in other M'ords where the Court whose judgment is in question is, in the language of Professor Dicey, a Court of competent jurisdiction in the international sense. A Court is competent in common law and equity when the defendant was within its territory at the commencement of the suit, and it may be conceded that where there has been service out of the jurisdiction in accordance with Part II. of the Act, no further inquiry into tlie competence of tlie Court would be per- missible. But many cases may be imagined in which a State Court might have jurisdiction under its own law without being internationally competent. In the case of similar Acts passed by the State Parliaments for the reciprocal enforcement of judgments, international competence has been insisted upon.^ But these Acts are not the Acts of a common legislature, and in the analogous case of the Judg- ments Extension Act 1868 for the United Kingdom, Pro- fessor Dicey has urged that the Court of enforcement cannot consider the competence of the Court whose judgment is brought into it.- Note. — Sec. 21 [2] provides that from registration a certificate of judg- ments " sluill have, the same force and effect as a judgment of such Court (i.e. in which it is registered), and the like proceedings may be taken upon such certificate as if the judgment had been a judgment of such Court." On this provision questions have arisen as to whether the judgment may be the basis of a fraudulent debtoi-'s summons or of a petition in insolvency. In Macnamara v. Miller (1902 28 V.L.R. 327), Hodges J. held that a ^Swjner v. Marh^. (189.1) 21 \\L.R. 491 ; Elkan v. Juveimj, (1900) 25 A\L.R. 718; 26 V.L.R. 186. - Conflict of Laiv.«, p. 426. In Mnckenzie v. Maxwell, (1903) 20 W.N. (N.S. VV.) 18, Pring J. ordered leave to register a Western Australian judg- ment to be set aside on the ground tiiat it was a nullity in New South Wales. In Ex parte Penglase, (1903) 3 S.R. (N.S.W.) 080, it was held that whether or not a judgment of the County Court of Victoria against a non-resident was or was not a nullity in New South Wales, the officers giving the certificate in the one State and acting upon it in the other are bound to treat it as valid ; if it is challenged, the proper course is to apply un) between residents of dif- ferent States ; or (c) between a State and a resident of another State. Sec. 75 (iv.). >See Holmes v. AVr,., 1(1 \V.R. :ii), ;}I L..T. Cli. r)S ; Frilh v. AV;;., E.R. 9 Ex. .S(;.5 ; Palmer \\ fliifrhinsoii, 18.SI G App. Ciis. (Vil ; Cf. i'Vie Common- wealth V. Baume, (1905) 1 (Mi.R. 403. '/w. re Batemati's Trusts, L.R. 15 Kq. ;^.i") ; In re Oriental Bank Corpora- hon, ex parte 'Jhe Crown, (1884) 28 Cli. Div. 643. 'See 1 Commonwealth Law Reriew, p. •241, "Actions iigainsb the Uom- monwealtli for Tort," by A. P. Canaway. 492 THE COMMONWEALTH OF AUSTRALIA. All tliese cases belong to the class described by Kent as presuming tliat " State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control the regular administration of justice." Cases between residents of different States are of so common occurrence, and are so much in the ordinary experience of the Courts that there seems no particular reason for giving the High Court original jurisdiction over them, or even for making them matters of federal jurisdiction at all, especially as the appel- late jurisdiction of the High Court and the King in Council offers a sufficient protection. The Common wealth jurisdic- tion is more limited than the United States jurisdiction ; it does not extend to suits "between a State or the citizens thereof, and foreign States, citizens or subjects." Under the head of controversies " between two or more States " and " between a State and citizens of another State," frequent attempts have been made to induce the Courts in America to extend the area of judicial cognizance ; and to turn matters which, in the condition of independent States, are moral or political, into matters of legal right. The juris- diction of the federal Courts has sometimes been thought to stand for all State disputes as the constitutional substitute for war and diplomacy, and consequently to extend to all disputes w^hich might endanger the peace of the Union, or the cordial relations of the States. But the Courts have declined to undertake the discussion of merely political issues, and have in general construed their jurisdiction as limited to cases in which, before the Revolution, jurisdiction was exercised by some Court. " The truth is that the cognizance of suits and actions unknown to the law was not contemplated by the Constitution when establishing the judicial power of the United States. Some things undoubtedly were made justiciable which were not known as such at the common law ; such, for example, as contro- versies between States as to boundary lines. And yet the THE SUBJECTS OF FEDERAL JURISDICTION. 493 case of Penn v. Baltimore^ shows tliat some of tliese unusual subjects of litigation were not unknown to the Courts even in Colonial times ; and sevei-al cases of the like character arose under tlie Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles. The establishment of this new branch of juris- diction seems to be necessary from the extinguishment of diplomatic relations between the States. Of other con- troversies between a State and another State or its citizens,, wliich on the settled principles of public law, are not sub- jects of judicial cognizance, this Court has often declined to take jurisdiction.""^ Tlius the Supreme Court refused to entertain an applica- tion by the State of Kentucky for the extradition of a fugitive criminal,^ and generally " has declined to take jurisdiction of suits between the States to compel the per- formance of oblio^ations wliich if the States had been inde- pendent nations could not have been enforced judicially but only thi-ough the political departments of their governments."^ Wlien in 1876 tlie State of South Carolina filed a bill in equity to restrain the State of Georgia and other persons from obstructing the free navigation of the Savannah River, it was left an open question whether a State must not aver and show that it will sustain some special and peculiar injury such as w(juld enable a private person to maintain a similar action in another Court.* The most recent cases of Missouri v. Illinois^ and Kan- » I Yes. Sen. 444. ^ Hann V. Louisiana, {18S9) 184 U.S. 1, 1."). See also ]Visconsin\-. Pelican IiiHurance Co., 127 U.S. 265. It may be added that the adjustment of boundary disjuites was before the Revolution one of tlie matters under- taken by tlie King m Council. '^Kentucky v. Dennison, 24 How. OG. **\ Carolina v. Oeoryia, 93 U.S. 4 : IViscousin v. Pelican Insurance Co.,. supra. "180 U.S. 20S. 494 THE COMMONWEALTH OF AUSTRALL\. sas V. Colorado^ ^.-o far in the assumption of jurisdiction. In the tirst case the Court entertained a suit by a State as 'parens j)atriai to restrain anotlier State and all persons acting under its authority from polluting the waters of rivers in the plaintitt's territory. In the second, the Court over-ruled a demurrer to a bill in equity claiming an injunc- tion against deprivation of the plaintiff State and its citizens of waters of rivers accustomed to flow throngh its territory. The competence of the plointifl' State to sue on behalf of the injury to its citizens was recognized, as well as the liability of the defendant State to an injunction for acts done under its legislative authority. Both cases are interesting — the latter especially — as to the law aj^plicable to disputes be- tween States, the doctrine as to which is summed up hy Fuller C.J. in these words : — " Sitting as it were as an inter- national as well as a domestic tribunal, we apply Federal law, State law and International law as the exigencies of the particular case may demand."- Kansas v. Colorado is peculiarly interesting to Australians since it deals with the respective rights of riparian States for which irrigation waters are desired or necessary, and glances also at the relation of navigation to irrigation, and the powers of the federal authority as guardian of navigation.^ Suits between States are as already pointed out committed to the exclusive jurisdiction of the High Court {Judiciary Act 1903, sec. 38). " Matters hetiveen a State and a resident of another State." — A State is an extensive owner of property, it makes contracts, and the acts of its agents may cause damage. All these are matters which give rise to legal relations between private persons and those relations are enforced by the 1(1901) 185 U.S. 125 ; (1906) 206 U.S. 46. 2185 U.S. 146. See also 206 U.^„ at p. 97. "See 2 Commonwealth Law Nevieic, p. 241, " The .Jiulicial Power and Inter-State Claims," by P. McM. Glyun. THE SUBJECTS OF FEDERAL JURISDICTION. 495 Courts. But in such matters, tlie State is an abnormal person, and its immunities are commonly expressed in our law by the maxim that " the King can do no wrong." A counnon law remedy, the petition of right, enabled the Courts to do justice between tlie King and his subjects where the former was in possession of land, goods or money of the latter wlio souc^lit restitution or damatres ; and of late this remedy has been held to extend to cases of contract. It is, however, very far from applying to all cases in law or equity which would be justiciable if between subject and subject; nor when the case is justiciable, does it follow that the Court in determining the liability of the Crown applies the same rules as in cases between subject and subject. It is well settled that in England the petition of right, whether at common law, or as regulated by Statute, does not extend to torts.^ The Crown has in the States the same immunities and is subject to the same procedure as in England. But in addition to the provisions of the common law, most of tiie States have made statutory provision for proceedings against the Crown, or some public officer or department on its behalf.- In varying degrees, proceedings for torts of some kinds may be brought against the govern- ment in all the States ; the constant presence of the government in spheres which in England and America are occupied b}'^ private enterprise, would make the maintenance of the old doctrine in its integrity, intolerable. Where there is a right to pursue claims against the State under the State law — whether the common law or Statute — such claims ^vill be cognizable by the High Court under sec. 75 whenever they are made by a resident in another ^Tohiu V. The Queen, (lSG-1) IG L'.li.X.S. ;J1U. -New South Wiiles. — Claimn Agaiwil (he Ooi'f.rnmeut and Crown Suits Act 1897 (and see Farnell v. Bowman, VI App. Cas. G49) ; Victoria. — Crown Remedies anil Liahif it >/ Art IS90 ; (,^)iieeiislaiul. — Claims A, \V2'^ it neq. "-lb. •'Cooley on Taxation, pp. 411, 412. "Taxation differs from exaction in that tlie ol)ligiition to contiihute depends npon prescribed differentiations as to tlie persons from whom or the things in respect to whicii the contri- bution is to be made " : per Cur., The KIikj v. Banjfr, 6 C.L. R. at p. 68. ^Cooley on Taxation, pp. 112.3 tt .tpq. " The distinction between a. de- niand of money under the police power cuul one made nnder the power to tax is not so much one of form as of substance. The proceedings may be the satne in the two cases, though tiie pftrpose is essentially different. The one is made for regulation and the oilier for revenue." The distinction between a licence fee imposed in the way of regulating the carrying on of a business and an excise tax was drawn by the Tligli Court of Australia in Peternrald v. Hartley, 1 t'.L.H. 497. */*ac« V. BtirrjenK, 92 U.S. .S7J ; Monjaii v. Louisiana, 118 U.S. 455; Postal Telegraph Co. v. Taylor, (1904) 192 U.S. 64. "IBS U.S. 605. 508 THE COMMON \VEALTH OF AUSTRALIA. revenue but of punishment, the additional duty was to be regarded, not as an original imposition of a tax, but as a penalty for non-payment. The most striking instances, however, are to be found in the case of the Veazie Bank v. Fenno'^ and The Head Money Cases;- in both of which what purported to be " taxes," and would therefore as such have been subject to certain qualifications expressly imposed by the Constitution on tlie exercise of the taxing power, were held to be valid though the (Salifications were not observed, on the ground that they were not an exercise of the substantive power cf taxation, but were merely inci- dents in the exercise of definite pov/ers of regulation granted by the Constitution — in the one case over currency and coinage, in the other over foreign commerce. This determination of the true nature of an impost has to be made by the Courts consistently with the equally well established principle that they are not concerned with the motive or expediency of an Act, its oppressive or destructive incidence, or its indirect efi'ects.^ In every provision for revenue the legislature, upon whom lies the determination of the subject of taxation,^ must exercise a discretion, not merely as to the productiveness of the various possible means, but us to their efiect upon trade, upon social con- ditions and generally upon the national welfare. These con- siderations are legitimate, and the choice of a particular mode of raising; revenue is not to be reviewed either because it produces certain social or economic effects, or because it is founded in an expectation that it will restrict a trade which is deemed obnoxious (e.g., the liquor trade) or encourage a trade which is deemed beneficial (e.g., protective duties). '8 Wall. rj48. Ml 2 U.S. 580. ■" The Kin// v. Bargf.r, 6 C. L. R. at p. UG, 67. ^Ih. at p. 68, 71. FINANX'E: TAXATION". 509 As a matter of practical operation this leads to the result that where a Statute contains nothintr to disclose that its primary object is not the obtaining of revenue, but protec- tion or regulation or prohibition, tlie Courts will take it at its face value and treat it as an exercise of that power which would make it valid. These considerations apply generally whenever the power of taxation is granted eo nomine to or withdrawn from a subordinate authority. In the case of the Commonwealth Constitution, they apply to the power committed to the Commonwealth Parliament ; and the}' are reinforced by a consideration of the federal nature of the Constitution, as (k'clared in its own terms.' What is imported by the declaration that the Commonwealth is a " Federal Common- wealth " has been already considered. Here it is enough to add that the purpose of the Constitution to establish a federal and not an unitary government must be treated as a fundamental principle dominating the construction of every part of it. I'he like principle was laid down in the United States by Marshall C.J. in McGulloch v. Maryland,- has been repeatedly affirmed since,^ and is the foundation of the construction put upon the very general terms in which additional powers of legislation were granted to Congress by the amendments which followed the Civil War.^ The ' The KiiHj v. linrtjer, 6 C'.L. 11. 41, .1{. at p. -I-.i-I, per (irillilii C.J. = (1908) 6 C.L.K. 41. ' Tlie Excise Taritf 1906, anotlier Act, adopted the same policy, Itj' a means which did not differ materiiillj', in tlie case of spirits. 512 THE COMMONWEALTH OF AUSTRALIA. scheme of the Constitution, which merely left the residuary power to the States. " It is contraiy to reason to limit the expressly granted jiowers by the undefined residuum. As well miglit the precedent gift in a will be limited by first assuminir the extent of the ultimate residue."^ The Act did lay a tax which, when paj^able, would find its way as revenue into the Consolidated Revenue Fund. For the rest, it merely exercised the undoubted power of Parliament to select the persons and things taxable and to determine who and what should be exempt from taxation. The Act neither authorized the carrying on of a trade under certain con- ditions nor made it unlawful to carry it on without those conditions, and this demonstrated its true nature as a "tax" as distinguished from a " regulation." Tlie exemption was a bounty to those who chose to comply with its conditions, and on the authorit}^ of Austin a " reward " was not a " sanction." It might well be that the result of such legis- lation was practically to compel the manufacturer to comply wath the conditions laid down or go out of business ; but that was merely a consequence of the operation of tlie Act, difi'erino- not in kind but onlv in degree from the economic consequences which invariably attend the incidence of taxa- tion. It might also be that such a result was designed by the Legislature ; but that again belonged to the policy whicli guided the im230sition of the tax and tlie selection of the subjects of taxation, a matter of motive into which the Courts were not competent to inquire. Reliance was put on the plenary nature of Parliamentary authority over the subjects committed to it (R. v. BuraJif and on the uphold- ing of " taxes " imposed by Congress with the object of prohibiting or destroying the thing taxed {Veazie Bank v. Fenno'^: a prohibitive tax upon the note circulation of ' Per Isaacs J. at p. 84. = L.R. 3 A.C. 889, 905. "8 Wallace 548. FINANCE: TAXATION. 513 State banks: McCray v. United States^: the Oleomar- garine Act 188G imposing a tax of I of a cent per lb. on oleomargarine not artificially coloured to look like butter, and a tax of 10 cents per lb. on oleomargarine which was so coloured). It was further argued that as Parliament had undoubted power to protect industries by fiscal legislation, it must be within its power to define the conditions of that protection, and to secure that its benefit should not be con- fined to the employer. The Act was attacked by the manufacturers and the State of Victoria, and held invalid by the majority of the Court (Griffith C.J., Barton and O'Connor JJ.), on an asser- tion and application of the principles already laid down. The powers of each govei-nment should be construed consistently with the federal nature of the Constitution, and any con- struction wliich would in substance transform the ofrant of enumerated matters into one extending control to all sub- jects whatsoever, must be rejected. If the power of taxation could be used as it was used here, a simple means was pro- vided whereby in substance the Commonwealth Parliament could control and regulate all those internal matters which were carefully reserved to the States. Admitting that the incidental effects on the one hand, and the motive or policy of an Act on the otiier, were irrelevant in determining its ^'alidity, it was the duty of the Court to ascertain from the terms of the Act its true nature. In tliis cast' without going beyond the Act, it was plain that it was primarily an Act to compel all persons engaged in this industr}' to pay certain rates of wages, and the imposition of the " tax " was a mere incident to this substantive purpose, the means employed to secure the observance of the Act. It was in iact "an Act to regulate the manufacture of airi'icultural implements" subject to a sanction which took the form of a Mti()4) 195 U.S. 27. Kk ■ft 514) THE COMMONWEALTH OF AUSTRALIA. pecuniar}'^ liability. It was immaterial whether that liability was made enforceable in one Court as a debt, or in another Court under the name of a penalty. The sanction was the same in substance and equally effectual in either case. " If this were not so the Commonwealth Parliament might assume and exercise complete control over every act of every person in the Commonwealth by the simple method of imposing a pecuniary liability on every one who did not conform to specified rules of action, and calling that obliga- tion not a tax, but a penalty."^ As has been pointed out, the general power of taxation exists in the Commonwealth concurrently with and inde- pendently of the like power in the States. There is, how- ever, one mode of taxation which is exclusively assigned to the Commonwealth Parliament and prohibited to the States (sees. 86, 90), viz., duties of customs and excise. " Duties of customs " evidentl}^ means duties imposed upon the importa- tion of goods into the Commonwealth from parts beyond the Commonwealth,'- and the freedom of inter-State com- merce from taxation is secured by the express provision of sec. 92. It has been stated already that a power to charge for expenses actually incurred is to be distinguished from " taxation." Consistently w^itli this distinction, the Con- stitution permits the States to " levy such charges as may be necessary for executing the inspection laws of the States" (sec. 112). As, however, such a power is liable to abuse, the States are put out of the reach of temptation by the provision that " the net produce of all charges so levied shall be for the use of the Commonwealth " ; and the com- iPer Curiam, 6 C.L.R. at p. 77. ''See sees, t'2, 9.S, 95, dealing with goods imported into any State, and pai«ia(j tlieiice into some otlier State. Cf. in the United States, Woodruff V. Parham, S Wall. 140. • FINANCE: TAXATION. 515 plete control of iiiipoitatioii and of inter-State trade by the Connuonwealth is aceoinplislied by the provision tliat " any sucli inspection laws may be annulled by the Parliament of the Commonwealth." " Duties of excise," taken by itself, is a term of very extended meanino^. Its primary meaning was to describe a tax on commodities produced at home, in opposition to the duties of customs payable on importation from abroad. But the term has been extended to cover the duties payable by way of licence fee on a lai-go number of occupations as well as the taxes levied on certain modes of individual expendi- ture treated as indicia of wealth or taxable capacity.^ In Peterswald v. Bartley^^ the question was raised whether the primary or the more extended meaning was to be given to the term as used in the Constitution. The law of New South Wales required that persons engaged in tlie occupa- tion of brewing beer should have an excise licence for Avhich a fee was payable, and payment was resisted by the taxpayer on the ground that under the Con.stitution a State could not impose any " duty of excise." The Supreme Court of New South Wales held that the tax was within the constitutional prohibition. The High Court rever.sed that judgment on the ground that, used in the Constitution in association with duties of customs, and in one instance specifically described as " duties of excise paid on goods produced or manufactured in a State " (sec 93 (i.) ), the inference was almost inevitable that it was intended to mean a dutv analoo;ous to a customs duty imposed upon goods, either in relation to (|uality or value when produced or niuiiufactured, and not in the sen.se of a direct or personal tax. The Court could see no reason, in a Constitution wiiich left the regulation of occtipations 'See Eiiryrlnpo'dici of Kn;ili''h Law, title " Excise " ; ami Anson's Laio and Custom afthe. Conalitutiou , vol. 2, i)p.'2ni-"2!l-2. n C.L.K. 497. 516 THE COMMONWEALTH OF AUSTRALIA. and iudu.sfcries to the States, for givin"' to the term a mean- ing which would deprive them of a usual mode of regulation and transfer it to the Commonwealth. Similarly, in TJie King v. Birger and CommonwealtJi v. M'Kay} the " duty of excise," as being in substance a regulation of the occupa- tion, was held not to be an excise within the meanino- of the Constitution. It remains to consider the restrictions which the Con- stitution imposes upon the exercise of the taxation power. 1. The grant itself is coupled with the qualitication " so as not to discriminate between States or parts of States." As originally drawn, it followed the terras of the Constitu- tion of the United States as to duties, imposts and ex- cises, and provided that taxation should be " uniform throughout the Commonwealth." But this was more than the federal spirit required ; it prevented not merely dis- crimination among the States, but discrimination in the case of individuals ; and the Convention, warned by tlie discussions in tlie Supreme Court of the United States in Pollock V. The Farmers' Trust {The Income Tax Case) - adopted terms of geographical limitation. The provision must be compared with sec. 99 of the Constitution, whereby : " The Commonwealth shall not by any law or regulation of trade, commerce, or revenue give preference to one State or any part thereof over any other State or part thereof." Two important questions have arisen on this restriction. First, is the restriction one of a class which may be de- scribed as " federal," i.e., designed merely to prevent dis- tinctions between States or parts of States as such, but 16C.L.R. 41. -157 U.S. 593. In 1899 — after ihe Convention — the Supreme Court of the United States held that " uniform " was a term of geographical limitation [Knoidlon v. Moore, 178 U.S. 41). FINANCE: TAXATION. 517 otherwise leavinc^ the Coininonwealth free to distinguish between localities ? Secondly, whichever construction is adopted on the tirst question, does the provision relate to discriminations appearing in the legislation itself, or does it enable or require the Commonwealth so to adjust its legislation as to equalise the incidence of the burden having regard to the ditierent conditions prevailing in ditlercjnt parts of the Commonwealth ? Both questions were raised in Com^nonivecdth v. M'Kay and lice King v. Barger,^ and the division amongst the members of the High Court on the main question in the case appeared also in this subsidiary matter. According to the opinion of the majority (Griffith C.J., Barton and O'Connor J J.), the words " States or parts of States" must be read as synonymous with " parts of the Conmion wealth" or " different localities within the Connnonwealth ;" the condition is one requiring geographical uniformity through- out the Commonwealth. The minority (Isaacs and Higgins J.l.) disacn-eed. Isaacs J. called attention to the avoidance of the use of the term " uniform " in this connection, which nuist be regarded as deliberate, having regard to the fact that that term was employed in the corresponding provision of the United States Constitution as well as in other cases (duties of customs, bounties), in the Commonwealth Con- stitution. He considered that the prohibition was directed a^rainst difierentiation in measures of taxation between States and parts of States, because they were particular States or parts of States. On the second point the members of the Court were probably agreed in pi-inciplc tliat I lie discrimination or preference prohibited is one made by Hie Act itself — that Parliament may not vary the impo.st fioin place to place, even with the view of establishing what is, in its opinion, M1908)6C.L.R. 41. 51 H THE COMMONWEALTH OF AUSTRALIA. equalit}' of burden or sacrifice as between the taxpayers in different localities — real uniformity as distinguished from nominal uniformity. Every locality was entitled to the benefit of its natural advantages. But the}^ differed in the application of the principle to the circumstances of the present case. The decision of the Privj^ Council in Colonial SiCgar Refining Co. v. Inrmg^ was cited on both sides. In that case a Connnonwealth Excise Act had imposed a certain rate of duty on all sugar which had not paid customs or excise duty under some (State law, and it was objected that the Act established a discrimination or preference because in some States the rates of duty had been higher than in others, and in Queensland no excise duty had existed at all, whence it followed that the actual burden of excise duty was unequal in the several States. This contention was rejected by the Privy Council on the ground that the inequality was not imposed by the Act, but was brought about by extrinsic facts — the different conditions existing in the several States under the State laws. The majority of the High Court in The King v. Barger held that the provisions of the Excise Tariff 1906, under which the conditions of exemption would vary according to the cir- cumstances of different localities and the determination of various authorities exercising jurisdiction over particular areas, contravened the principle here laid down. The minority, on the other hand, held that as the same rate of tax was imposed upon all persons wdio did not fulfil the condition imposed — viz., the payment of fair and reasonable wages — the Act itself did not discriminate, and any dis- crimination arising in fact was merely the result of different local conditions, and of the views of the several authorities charged with determining what was a fair and reasonable wage. M1906) A.C. .S60. finance: taxation. 519 2. The Commonwealth {i.e. the Parliament of the Com- monwealth) may not impose any tax on property of any kind belonging to any State. Sec. 114. This is a reciprocal provision corresponding Avith the like restriction on the power of the States; and may be compared generally with sec. 125 of the BritisJt Nortlt America Act 1867, under which no lands or property belonging to Canada, or any Province, shall be liable to taxation. It is obvious that the restriction applies equally to any authority to which either Government commits anj'' part of its taxing power, e.g., to municipalities in the exer- cise of their rating power.^ The question is whether tlie tax is substantially a " tax on property " in the sense in which those words are commonly understood. Municipal rates are a tax on property in this sense, and it is immaterial that they do not constitute a charge on the land in the nature of an incumbrance.' On the other hand, a stamp duty on receipts is not a " tax on property."^ In A.-G. for Neiv South Wales v. Collector of Customs* it was argued that duties of customs were taxes on property, and that therefore the Connnonwealth could not iuipose duties upon imports the property of any State. The majority of the Court held that, though the power with respect to " taxation " included the levying of customs duties, the Constitution never spoke of customs duties as a tax, but used distinctive terms; that even as a tax they were laid upon operations or movements (in this case the impor- tation) of property rather than upon property itself, thus falling into the class with succession duties, stamp duties and other forms of indirect taxation, which were never ^ Mnniripa/ Gouiiri/ of Sydne)/ V. Comninnireallh, 1 C. L. K. 208. 2S.C;.,at p. 232. 'D'Eni/lm v. Pedder, 1 C.L.K. Ul, KJS. *5 C.L.R. 818. 520 THE COMMONWEALTH OF AUSTRALIA. deemed to be taxes on property ; and that finally the States could claim the benefit of the section only on property within the Commonwealth and not in respect of property which was not yet subject to their governmental authority, and which might be admitted or excluded at the will of the Commonwealth. Isaacs J. dissented from the view that a customs duty was merely a tax on the act of importing as distinguished from a tax on property, and rested his judg- ment on the ground that tlie duty was not a tax within the meaning of sec. 114. The proper inference to be drawn from the section in its bearing upon the application of the doctrine of the im- munity of instrumentalities was one of the subjects of differ- ence between the Privy Council in Webb v. Outtrim} and the High Court in Baxter v. Commissioners of Taxation.- The section was referred to by the Privy Council as showing that the protection of the Commonwealth and State against each other was not lost sight of by the framers of the Constitution, and as therefore pointing to the exclusion of any further protection arising by implication. The High Court points out that the section has an application beyond the doctrine in question, extend mg the protection beyond instrumentalities of government to all property, even though held in the carrying on of an ordinary business or invest- ment, and that in any case expressum facit cessare taciturn is a valuable servant but a dangerous master. 3. The Commonwealth may not tax any agency or instru- mentality of the States. This is another reciprocal restriction existing equally in the case of State taxation in favour of the Commonwealth Government. It is the most common application of the general principle first aflSrmed in the United States in '(1907) A.C. 8L ''(1907)4C.L.R. 1087, 1126. FINANCE : TAXATION. 521 M'Culloch V. Afaryland} and considered herein under the title "The Doctrine of the Immunity of Instrumentalities." 4. By sec. 92, on the imposition of uniform duties of Customs, trade commerce and intercourse amonf:^ the States, whether by means of internal carriage or ocean navigation, was made absolutely free. The Commonwealth Parliament can therefore impose no tax upon such com- merce. The effect of the clause is considered under the head of " Commerce," Part IX., Chapter V. 5. Sec. 55 requires that laws imposing taxation shall deal only with the imposition of taxation. This clause, together with the provisions governing procedure in finance, has been considered in Part III., Chapter III. herein. 14 Wheaton 316. [o22] CHAPTER II. COLLECTION AND EXPENDITURE OF PUBLIC MONEY. By sec. 81 of the Constitution all moneys raised or received by the Executive Government of the Common- wealth form one Consolidated Revenue Fund to be appro- priated for the purposes of the Commonwealth, subject to the charges and liabilities imposed by the Constitution ; and by sec. 83 no money is to be drawn from the Treasury of the Commonwealth except under appropriation made by law. The Constitution thus adopts the results of English and Colonial experience. A Consolidated Fund has long com- mended itself in preference to the assignment of specific taxes to specific charges. For special reasons the Constitu- tion does admit one exception to this principle in ear- marking for a limited period the revenue from customs and excise (sec. 87). Sec. 83 emphasizes the constitutional rule of the control of Parliament over expenditure and the issue of public money, as to the working of which there was at one time some misconception in Australia. " Appropriation by law " excludes the once popular PUBLIC IVIOXEV. 523 doctrine that iiiouey mio-ht become legally available for the service of Government upon the mere votes of supply hy the Lower House. A v^ery important ((uestion arises as to tlie extent of the power of appropriation. By sec. 81, the Consolidated Revenue Fund is " to be appropriated for the purposes of the Commonwealth." Unquestionably the Commonwealth may appropriate money for tlie maintenance of its govern- ment and for the execution of any of the objects which have been conunitted to any branch of it. Does the power of appropriation extend beyond this, so that the Parliament, iiaving a general power of taxation, has an equally general power to expend the proceeds of that taxation as it thinks fit without regard to whether the object of expenditure is for the purpose of and incident to some matter which belongs to the Federal Government ?^ In the United States, after keen controversy, it is now agreed that " the power of Congress over the Treasury is in eflect absolute, and extends to the appropriation of money for any object which in their judgment will conduce to the defence of the countr}^ or pro- mote its welfare."- This, however, is under an express power to "provide for the general welfare." In Canada, the government wliose powers are limited by enumeration — the provincial government — has power to raise a revenue l^y direct taxation " for provincial purposes " ; and tlie Judicial Committee has held'' that this includes direct taxa- tion " for a local purpose upon a [)artieuhir l(jcality," and is 'The question is raised in tlie Meniorandiun of tlie Attoniej'-Cieueral on an Australian IJnreau of A^'rictiltme, T.P. 1!U)S, No. 194. See also Parlia- nientary Debates HXK5, pp. 19it7-S (Tlie Naval Agreement Bill, views of Mr. (now Mr. Justice) Higgins). "Hare, Ameriran Gonntilutional La»\ vol. i., p. 245. See also Story, sec. 991. For critiuisiM of this view, see 'J'urker on the ConnlUuiion of United Staler, vol. i., jjp. 47ti e,t neq. 'Dow V. Black, L.R. 6 P.O. '27-2. 524. THE COMMONWEALTH OF AUSTRALIA. not confined to general provincial purposes, and this not- withstanding that there is anotlier article under whicli the Provincial Legislature may impose licences " in order to the raising of a revenue for Provincial, Local, or Municipal pur- poses." It must be remembered, however, that amongst the matters of provincial power are " all matters of a merely local or private nature in the Province." The Common- wealth Government is without either of the attributes which seem material to the conclusion arrived at in the United States and in Canada. There is, moreover, what appears a vital distinction between the United States and the Commonwealth Con- stitutions in tliat, in the former, the proceeds of taxation are the unqualified property of the Federal Government, subject to no claim by anyone else. The result is that no one — neither State nor citizen^ — has that definite leofal interest in the subject matter which, upon settled principles, is essential to any party seeking to impugn the validity of a legislative act. In the Commonwealth the proceeds of taxation are not the unqualified property of the Common- wealth Government ; they are subject to the provision of the Constitution whereby " surplus revenue " belongs to the several States, and in fact a considerable part of Chapter IV. of the Constitution is devoted to the adjustment of the financial relations of the Commonwealth and the States. This right of the States^ at once suggests a limitation upon the objects of appropriation, and gives the States a locus standi for challenging appropriations which may appear ultra vires. Some other facts appear also to point to the interpretation of the power as one to appropriate merely for iln Millard v. Jioherts (1905) 202 U.S. 429, the right of the citizen was assumed for the jiurposes of the case, but the ('ourt expressly refrained from expressing an opinion. -" An absohite vested right "^per Ciiriom in Tasmania v. Commonwealth and Victoria, 1 C.L.R. 329, 340. PUJiLIC MONEY. 525 federal purposes. The power is not, as in the United States, given in the enumeration of powers over specific objects. In the Commonwealth Constitution the substantive and inde- pendent matters of legislative power for the " peace, order and o'ood government of the Commonwealtli " are enumcr- ated in sec. 51 ; and in general the provisions of Chapter IV. are consequential and subsidiary to the grants of sec. 51. The fact, also, that amongst the subjects of express grants in sec, 51 are several which are primarily powers to authorize expenditure of money on particular objects — bounties, bor- rowing money (and consequently repayment) invalid and old-age pensions, the acquisition and construction of rail- ways with the consent of a State — strengthen the view that the power of the Commonwealth to appropriate money is no exception to the rule tliat the Commonwealth Government is one of specific and not general powers. Sec. 96 — authorising financial assistance to any State — and sec. 105 — providing for taking over the public debts of the States — may be accounted for independently, but at least point in the same direction. At the time of writing, however, there has been brouglit forward by the Government, with the assent of the State Governments, a scheme for freeing the Connnonwealth surplus revenue from the residuary claim of the States by establishing in favour of the States a right to a fixed sum of 25s. per head nl" p()i)ulation, and it is proposed to alter the Constitution accordingly. If the scheme is adopted, the Commonwealth will be practically free to expend its revenue upon any object wliicli seems good to it, whether within the enumerated objects or not: it will be in tho same position as the Government of the United States. The only definite " charge " imposed by the Constitution is tlie provision of sec. 82 that " the costs charges and expenses incident to the collection management and receipt 526 THE COMMONWEALTH OF AUSTRALIA. of the Consolidated Fund sliall form a iirst charge thereon." There is a similar provision in several Colonial Constitu- tions adopted in accordance with what used to be the ordinary practice in England, but was abandoned there in 1854.^ According to the opinion of the English Law Officers of the Crown in 1878, tliis provision makes the moneys " legally available for and applicable to the purposes men- tioned .... because they are in fact specifically appropriated by the Statute in question." Other specific appropriations of the Consolidated Revenue Fund by the Constitution are the salary of the Governor-General (sec. 3) and the salaries of the Ministers of State (sec. 66). The "liabilities" imposed by the Constitution will include the allowance to Members of Parliament (sec. 48) and the remuneration of Justices of tlie High Court fixed by Parlia- ment (sec. 72). As incident to the transfer of public departments to the Commonwealth, the Commonwealth assumed all the current obligations of the States in respect of such department (sec. 85 (iv.) ), was subject to certain existino; liabilities of the States to officers of the transferred departments (sec. 84), and was bound to compensate the States for a,nj property passing to the Conniionwealth for the pur- poses of such departments (sec. 85 (iii.) ). Finally, there are the rights of the States to their balances of receipts and expenditure as ascertained under sees. 89 and 93, or " surplus revenue " under sec. 94, and the temporary limitation put upon the application of the net revenue from customs and excise by sec. 87. These rights of the States will demand separate consideration. By sec. 82 " the revenue of the Commonwealth shall, in the first instance, be applied to the payment of the expendi- ture of the Commonwealth." The expression " expenditure * May's Parliamentary/ Practice, 10th ed., p. 516. PUBLIC MONEY. 527 of the Commonwealtli " is used or adapted in sees. 87, 89, and 93 so as clearly to exclude the State balances or the payment of interest on State debts, though those are, no doubt, purposes of the Commonwealth (sec. 81). The ex- penditure incurred must, as already seen, have been the subject of appropriation by the Constitution or by Parlia- ment. [528] CHAPTER III. FINANCIAL RELATIONS OF THE COMMONWEALTH AND THE STATES. It has been seen that a principal purpose of federation was to substitute an uniform customs tariff with intercolonial free trade for the fiscal independence of the several Colonies. Accordingly, on the establishment of the Commonwealth, the collection and control of duties of customs and excise and the control of the payment of bounties passed to the Executive (government of the Commonwealth (sec. 8(5), and the departments of customs and excise in each State were transferred to the Commonwealth. All property of the States used exclusively in connection with the depart- ments vested in tlie Commonwealth for such time as the Governor-General in Council should declare to be necessary, the Commonwealth coming under an obligation to pay com- pensation therefor, and assuming in respect to the depart- ment the current obligations of the States (sec. 85). As a consequence of the transfer of administration, the legislative power of the Commonwealth became exclusive with respect to all matters relating to tlie department (sec. 52), and in 1901 the Commonwealtli passed several Acts substituting its own laws for those of the States upon the subject matter.^ ^Cttsfoms Act 1901 ; Beer Excise Act 1901 ; Distillation Act 1901 ; Excise Act 1901. « FINANCIAL RELATIONS. 529 The next step was the establishment of an uniform tariff, as to which the Constitution directed that uniform duties of customs should be imposed within two years of the estab- lishment of the Commonwealth (sec. 88). The Customs Tariff Act 1902 received the Royal Assent on September 16th 1902; but in accordance with the usual practice adopted for the protection of the revenue, duties of customs under the new tariff were collected from the date of its introduc- tion to the House of Representatives, and the collection of these duties was expressly validated by the Act (sec. 6). In this case, however, an unusual complication arose from th one hand it was argued ^Treasurer's Memoramlum accompiinying Surplus Rerenue Bill 1908 (C. 54). -Audit Act'i lfl()l-(i, sec. 6'Ja. f 536 THE COMMONWEALTH OF AUSTRALIA. that the book-keeping period having expired, the Common- wealth was (save for the temporary provisions of sec. 87) subject to no limitations in respect of its expenditure, and might proceed to appropriate money for Commonwealth purposes as and how it would. When it had thus, accord- ing to its discretion, provided for its needs present and prospective, ' any surplus beyond such provision would belong to the States. Any other construction, it was urged, would perpetuate the cash system of the book-keeping period, and would seriously embarrass Commonwealth finance by preventing the Parliament from making the most ordinary arrangements dictated by prudence for meeting prospective requirements.^ On the other hand, it was contended that under the Constitution the States were entitled to all " surplus revenue " (sec. 94) ; that this meant the excess of revenue over expenditure ; and that "expendi- ture " was different from " appropriation," and was either money actually paid, or liabilities actually incurred. It was further contended that the familiar constitutional practice of Parliament must be called in aid in the inter- pretation of the Commonwealth Constitution, and that, therefore, nothing could be treated as part of the " expendi- ture " of any year which was not voted by Parliament to the Crown for the actual service of that year. A mere direction that money in the Treasury should be carried to a particular account was not even an appropriation in the Parliamentary sense, since it did not in itself make the money available to the Executive Government for issue. The interpretation upon which the Bill was based would defeat altogether the right of the States to surplus revenue, for it would enable the Commonwealth Parliament to hold all the funds that came into its Treasury by the simple ^See P.D. 1908, Mr. Glynn, p. 11,798 et serj. ; Mr. VV. H. Irvine, p. 11,814. FINANCIAL RELATIONS. 537 process of transferring them to some Trust Account nomin- ally devoted to a purpose on which future expenditure was alleged to be contemplated, but actually serving as a Com- monwealth hoard. ^ The legality of the Surplus Revenue Act 1908, in which the scheme of the Government was embodied, was broucjht to judicial determination in an action by the State of New South Wales against the Commonwealth.- The Hish Court held that the elaborate devices of the Audit Act and the Suiylus Revenue Act in the constitution of "trust funds" were unnecessary, and that the " expenditure " of the Com- monwealth which might be debited ao^ainst the States included all appropriations lawfully made by Parliament whether money had been disbursed on account of them or not, and whether the authority to disburse was one which the Executive might or not exercise durinof the current financial year. When, therefore, specified sums in the Consolidated Revenue Fund were set apart or diverLed for some Conmion wealth purpose, that was expenditure until the authority was withdrawn, and it was entirely in the discretion of the Parliament to fix the period at which actual disbursement should take place. From the first, the financial relations of Commonwealth and States engaged the attention of Federal and State Ministers, the matter becoming one of increasing urgenc}^ as the time during which the .security of the Braddon clause operated approached its close, and the Commonwealth was faced, through the assumption of the liability for old-age pensions, and the necessity for more extensive provision for defence, with a largely increased expenditure. From November 1901 to August 1909, no fewer than eleven 'See P.D. 190S, especially Mr. Bruce Smilli, p. 11,810 et se.q. ; Mr. Reid, p. 11,833 H seq. -(1908) 14 .X.L.K. G25, (i C.L. K. JU. 538 THE COMMONWEALTH OF AUSTRALIA. conferences of State Ministers discussed schemes for the settlement of their relations, and on several of these occasions, Commonwealtli Ministers attended and took part in tlie conference. On one occasion — October 1900 — the leaders of the Opposition in the State Parliaments also attended the Conference, the object of course being to divorce the subject from party warfare and to facilitate any Parliamentary arrangements that might be necessary.^ The first important step was taken at the Premiers' Con- ference at Sydney 1903, which adopted a memorandum by Mr. Irvine, then Premier of Victoria, calling attention to the dangers of a system whereby the Commonwealth, possessing a revenue vastly in excess of its requirements, would be encouraged to embark on unnecessary exj)enditure, steadily depleting the surplus revenue payable to the States and forcing upon them the necessity of imposing drastic direct taxation. To prevent this evil, the Premiers urged that steps should be taken to bring into operation the provisions of the Constitution for the taking over of the State debts b}' the Commonwealth. Responding to this invitation- the Commonwealth Treasurer, Sir George Turner, at a conference in Melbourne in 1904, proposed that all State debts then existing should be taken over by the Commonwealth and that all future loans should be raised throuo;h the Commonwealtli. In return the Commonwealth was to have the right to use its surplus revenue, and the gross railway revenue of each State was to pass through the Commonwealth Treasury in order to be available to the Commonwealth for the excess of interest over the surplus revenue due to the State. In case of 'A paper published by the Government of Victoria entitled Notes o)i the Financial Prohlem^ of the Com>noiiii:ea/lh and the States, by T. G. Watson, C'.M.G., contains an excellent account of the subject down to the Brisbane Conference 1907. -Parliamentary Papers, (Victoria) 1904, No. 37, p. 135. FINANCIAL RELATIONS. 539 future loans, the Commonwealtli was to be able to call for control over further State revenue if it should think necessary. The State Treasurers met this scheme vidth a counter proposal, favourincr the taking over of the debts by the Commonwealth, and the devotion of the surplus revenue to the pajniient of interest, any shortage to be made good by payments from the State to the Common- wealth. As a condition precedent to the taking over of the debts, they demanded the repeal of the time limit to the Braddon clause. With this nominal concurrence, however, there was really a wide difference of opinion. New South Wales being opposed to the transfer of the debts. Western Australia agreeing only upon conditions which evidenced her hostility to the plan ; and Tasmania and South Aus- tralia agreed to the perpetuation of the Braddon clause only on condition of the distribution of revenue on a pe?" capita basis. The Federal Treasurer replied insisting upon the necessity for the Commonwealth having some such security as he had proposed, but ottering to forego his claim to rail- way revenue until satisfied that it was required, and offering to accept any other satisfactory revenue in lieu thereof ; objecting to the perpetuation of the Braddon clause, but offering an extension for 15 years from its expii'ation under the Constitution or, during the currency of existing loans, the actual f for an}^ year or (jn an average of ten years, whichever was the smaller sum — the object being to leave a margin for increased Commonwealth expenditure. This scheme was submitted at a Conference at Hobart in 1905, at which the State Ministers resolved that the time for taking over the State debts liad not yet arrived ; that the States wer(> more concerned in securing to each State a guarantee of a fixed propoi't ion of customs and excise revenue, in view <»f the serious dislocat i<)i\ of State finances which would I'ollow if tin' customs and excise were per- 540 THE COMMONWEALTH OF AUSTRALIA. niitted to pass under the sole control of the Commonwealth ; " that it would not conduce to the interests of the States nor to the good Government of the Commonwealth if the Federal Parliament were secured in a position giving it control of revenues derived from taxation altogether beyond its actual requirements, as the inevitable con- secjuence would be extravagant expenditure by the Federal Government and disastrous financial embarrassment to the States." They therefore resolved that the Constitution ought to be amended by the removal of the 10 year limit to the Braddon clause.^ A number of further proposals were made on both sides, and the Conference ended with Victoria, South Australia, Western Australia, and Tasmania ready to accept a com- promise on the Federal proposals ; New South Wales and Queensland, however, refused to agree. At a Conference held in April 1906 at Sydney, the Prime Minister laid before the State Ministers the scheme of the Treasurer (Sir John Forrest) whereby for a definite period the States sliould receive a definite sum annually, based upon the average customs receipts of the preceding years. This was unacceptable to the States as securing them no share in the increased customs revenue, and as ofi^ering in any case merely a temporary settlement ; and their response was a reiteration of their demand for a repeal of the time limit on the Braddon clause, with the return of the surplus to the States or its application to tlie payment of interest on the debts, in the terms of the sclieme of the Convention in 1897."^ This was coupled with an expression of opinion that the time was ripe for the taking over of the State debts under the Constitution. A further Conference at Melbourne in October 1906, ^ Padiamenlary Papers, (Victoria) 1905, No. 29, Appendix F. -Parliamentary Papers, (Victoria) 1906, No. 2;^, p. 4. FINANCIAL RELATIONS. 541 brought the parties near to an agreement. After passing resolutions which declared that before any alteration of the Constitution increasing the powers of the Common- wealth over the State debts, it was desirable that an agreement should be arrived at which should (a) give financial security to the States, (b) leave the Common- wealth and the States financially independent each within its own sphere, the Conference substantially agreed to a scheme of the Commonwealth Treasurer (Sir John Forrest) whereby, from the expiration of the Braddon clause, for 10 years thereafter and until further alteration of the Constitution, each State should receive annually an amount equal to the average annual amount of f oE the customs and excise revenue contributed by it during the 10 years preceding December 31st 1910 (not including the special revenue in the case of Western Australia), with the provi- sion that if in any j^ear | of the net revenue from customs and excise exceeded the guaranteed amount the excess sliould be distributed among the States upon a per capita basis. In pursuance of the policy of separating State and Commonwealth Finance, and leaving the Commonwealth free to raise revenue limited by its own requirements, it was aofreed tliat the Commonwealtli should be freed of the oblisration of the Braddon clause to the extent that it might impose new duties for specific purposes without returning any of the proceeds thereof to the States ; and at a further Conference in May 1907 this was enlarged so as to include additions to existing rates of duty for specific purposes. At the Conference, a further very material alteration was made, whereb}'' the arrangement after the exjiiratinn of 10 years was alterable by Parliament without an auieiidment of the Constitution. The amount of revenue returnable to the States under tlie scheme hcr(^ adopted (as under Sir George Turner's) for the 3'ear 1910-11 was estimated at 542 THE COMMONWEALTH OF AUSTRALIA. £8,041,000.^ The Tieasurer's scheme for the gradual as- sumption of the State debts by couversion before maturity or redemption at maturitj^ tlie Commonwealth to be re- imbursed for interest out of surplus revenue supplemented if necessary by payments from the States, was generally approved ; and it w^as resolved that details should be dealt with at a special Conference, which, liowever, deferred the subject until the settlement of the surplus revenue question. Western Australia dissented from the scheme on the ground that her contribution was greatly in excess of the pro- portionate share wdiich would come to her on the mode of distribution proposed. The succession of Sir William Lyne to Sir John Forrest as Commonw^ealth Treasurer, was marked by a change of policy on tlie part of tlie Federal Government. In a memorandum for Parliament, laid before the Inter-State Conference held at Melbourne in April and May 1908,"^ Sir William Lyne condemned previous proposals in that they did not provide for an early separation of the finances of Commonwealth and States, and he laid down two further principles, viz., that the loss to the States of customs and excise revenue should be made up as far as possible by the gradual assumption by the Common wealtli of State debts, and that full advantage should be taken of the superior credit of the Commonwealth by the substitution of a Com- monwealth stock for the State stocks. He therefore pro- posed the assumption of the whole of the State debts and their administration by a Council of Finance, which should control a sinking fund, and through which new loans should be obtained as required. Parliament would appropriate an amount sufficient to pay the interest on the debts, viz. £8,753,000, and other charges connected therewith. The ^ Parlifwie.utary Papers (Commonwealth), 1909, No. 44, Table No. 4. - Parliani iL ary Papers (Victoria), 19'J8, No. "Jl, Appendix A. FINANCIAL RELATIONS. o43 Commonwealth would be recouped out of surplus revenue, supplemented by annual payments by the States, diminish- ing after the first live years according to a sliding scale, and terminating altogether at the end of 30 years, when the liability of the States for their transferred debts was to be extinguished. Drastic provision was made for the default of any State — the Commonwealth was to have power on the certificate of the Council of Finance to impose a special tax on the State, and the Council itself might suspend for ten years the State's power to raise a loan. In consideration of release from their indebtedness, the States were to hand over to the Commonwealth the " transferred properties " (Constitution, sec. 85), free of charge. Tiio " surplus revenue" under this scheme was tixed at six millions per annum, leaving the States to find £2,753,000 per annum to make up the total amount of interest on the State loans. As already pointed out, this contribution by the States was to diminish after the first five years according to a slidino; scale which would extinguish it altoojether in 30 years. As during the currency of the debts the Com- monwealth would hav(^ to make Pfood the amount of the diminution, there would be in efiect a gradual increase of the "surplus revenue" credited to the States, raising it (according to calculations) to £6,508,000 in ii)-20-2l} Wlieu at the end of 30 years the State liability for the transferred debts was extinguished and the Connnonwealth became solely liable to the public creditor, the Commonwealth contribution to the States would be equivalent to the total interest charge, viz., £8,753,000, in perpetuity. To this extent the States would share in the increased customs and excise revenue expected from the increase of population. But the credit would be represented exclusively by the provision of interest, and the States would have no claim ^ Parliamtntary Pupcn-i (Coiuinoiiwciihh), liJUi), No. 44, 'J'able 4. 544 THE COMMONWEALTH OF AUSTRALIA. to cash payments in excess thereof if the Commonwealth effected a saving by conversion or by paying off the debts. Nor would the States be able to claim any share in the growing increase of customs and excise revenue after the lapse of the 30 years. On the other hand, the great public works — railways, waterworks, &c. — for the provision of which the debts were mainly incurred, would remain to them as sources of revenue unencumbered by their interest charge. Thus, the separation of Commonwealth and State finance would be complete. The contrast between this scheme and Sir John Forrest's — the present loss of revenue, the- prospective disappear- ance of a claim to anj^ surplus revenue, and the novelty of control by a Council of Finance — called from the State Ministers a protest which declared that the proposals threatened the financial independence and solvency of the States. After reciting the principal onerous services of government for which the States remained responsible, obligations which would inevitably increase with the o-rowth of population, they affirmed that no financial scheme could be assented to by the States which did not provide for their receiving (a) a fixed annual sum, and (6) a propor- tionate part of all increases in revenue from customs and excise. They insisted that the States should remain the sole judges of their loan requirements without any inter- ference from other authority ; and while recognizing that the transfer of debts to the Commonwealth might eventually lead to economies, they considered that that matter should stand over until the settlement of the surplus revenue question. As to tlie mode of distributing the surplus revenue, they required that the per capita contribution of each State should be considered and allowed for. The Conference re-assembled at Hobart in March 1907, ' "^Parliamentary Papers (Commonwealth), 1909, No. 48. FINANCIAL RELATIONS, 5-45 the financial j^osition liavino- in the meantime been submitted to the Parliament of New Soutli Wales, which had approved the action of the State IMinisters. The Conference was attended by Mr. Fisher, the Commonwealth Prime Minister, and two of his colleatrues, a Labour Government having succeeded the Deakin Ministry ; but no proposals were submitted by the Commonwealth. The old claim for the perpetuation of the Braddon clause in its integrity was now abandoned, and a concession was made to Commonwealth needs bj' the substitution of three-fifths for three-fourths of the customs and excise revenue returnable to the States. But there must be a minimum of £6,750,000, and the arrangement was to operate without limit as to time and to he alterable only by an alteration of the Constitution. The distribution was to be on a ^^er capitd basis, Western Aus- tralia receiving special consideration by an additional ammal payment of £250,000, diminishing by £10,000 i\ year. Special arrangements were offered to meet the temporary exigencies caused by the assumption of respon- sibility for old-age pensions by the Commonwealth. The objections of the Commonwealth Government to this scheme were expressed b}' the Prime Minister in his policy speech at Gympie on March SOth.^ Briefly, they were that the increased revenue available under the scheme — £1,313,000 — would not enable the Conmionwealth to meet an additional annual expenditure estimated at nearly three millions; and that there was no provision for raising additional revenue for Commonwealth purposes through customs and excise duties, otherwise than by raising £5 for every £2 required. Regretting that the States made no proposal in regard to the assumption of their debts by tiie Commonwealth, the Prime Minister proposed that future relations should be 'See the Melbourne Argus, March Slat 1909. Mm O-iG THE COMMONWEALTH OF AUSTRALIA. governed under the terms of see. 94 of tlie Constitution, Ijy the return of surplus revenue to the States, without the guarantee of the Braddon clause. For his own goverinnent, he was prepared to guarantee £5,000,000 per annum to tlie States with an additional £250,000 to Western Australia, the latter diminishing on a sliding scale. This amount was based on the averajje customs and excise revenue for live representative years up to 1910, less the average Common- wealth expenditure on non-productive services during the same years + £2,000,000 for old-age pensions + £1,000,000 estimated for expanding necessities of the Commonwealth. The basis of distribution was to be according to population, and under this scheme, the amount returnable to the States would be £1"205 per head of population. The sum thus payable to the States would be a minimum, and the Com- monwealth would endeavour, as it had done in the past, to supplement the amount payable to the States as far as possible. The defeat of the Fisher Government at the beginning of the session of 1909, brought Mr. Deakin again into office, with Sir John Forrest again at the Treasury-. A meeting Avith the States' Ministers was held in Melbourne in August 1909, and at last an agreement was arrived at between the Commonwealth and all the States.^ This agreement recites that : — " In the public interests of the people of Australia, to secure economy and efficiency in the raising and spending of their revenues, and to permit their governments to exercise unfettered control of their receipts and expenditure, it is imperative that the financial arrangements of the Federal and State Governments — wdiicli under the Constitu- tion were determined only in part and for a term of years — should be placed upon a sound and permanent basis." It ^Parliamentary Papers (Commonwealth), 1909, No. 44. FINANCIAL IIKLATIUNS. 547 pvovidos that to t'ultil tlie iiiteutiou of the Constitution by providing- for tlie consolidation of the debts, and to ensure economical manao-enient of future loans, a complete investi- gation shall be undertaken; that to give freedom to the Commonwealth in levying duties of customs and excise, and to ensure to the States a certain annual income, the Com- monwealth agrees to pay to the States £1 os. per head of population per annum ; and that in view of the large con- tribution, 'per capita, made by Western Australia to the customs revenue, that State should receive a special allow- ance of £250,000, diminishing by £10,000 per annum, the allowance to be provided hy deductioji made on ix per capita basis from the shares of all the States. Temporary arrange- ments were agreed on to enable the Commonwealth to pro- vide for the heavy obligations undertaken by it in respect to old-age pensions. The estimated amount returnable to the States under this agreement in 1910-11 is £5,668,000.' As compared with Sir Wm. Lyne's scheme, the Commonwealth has a present advantage ; but the agreement allows the States a more liberal share in the increase of revenue expected from increase of population. Unlimited in duration, it relieves the States from the fear that the financial power of the Commonwealth may be used to augment its powers and diminish the powers and status of tlie States. The Commonwealth gains by a release from the trannnels of the Braddon clause, and a freedom to raise by customs and excise that revenue which it needs without also raisin^'- money which it does not require. A practical separation is eftected between Commonwealth and State finance in the fact that the Connnonwealth Trea.surer knows definitely what he has to provide, and State Treasurers know what they have to expect ; and in place of many pos.sible difficulties as ^Parliamentary Papers (Coininoiiwealtli), 1U09, No. 44, Table 4. 54.S THE COMMOWVEALTH OF AUSTRALIA. to their respective riohts and oblic>;ations in respect to "surplus revenue," the new scheme is simple and definite. The measure for tlie alteration of the Constitution to g-ive effect to the agreement had a stormy passage through the House and the Senate, the principal criticism being directed to the absence of any time limit to its operation, with the result that it could be amended only by an alteration of the Constitution. Not till the last vote was taken in the Senate Avas there any certainty that the absolute majority required by the Constitution would be secured. The Con- stitution Alteration (Finance) 1909 will be submitted to the people, with the Constitution Alteration (State Debts) 1909 at the o-eneral election of 1910. [549] CHAPTER IV. TRADE AND COMMERCE. On April l^Lh 1910, the general election of members of tlie House of Repre- sentatives, and of Senators to fill the place of those retiring by expiration of their term of service, was held tliroughout Australia, and at the same time the poll of the electors was taken on tiie two ('onstitution Alterations — Finance and State Debts. The result of the election was the return of a large majority of Labour members to the House, and a large increase in the Labour Senators. The Deakin Ministry at once resigned. The Constitution Alteration (Finance), containing the scheme arranged between the Deakin Ministry and the State Treasurers, securing the States the sum of "25/- per head of population, failed to secure the required majority of electors of the Commonwealth and the approval of four States. Neither of the two essential conditions was fultilled, as there was a majority of the electors, and tliree States — New South Wales, Victoria and South Australia — against it. The Con- stitution Alteration (State Debts) on the other hand, was carried by a large majority. New South Wales being tlie only Stale that declared against it. The final figures are not yet (April 1010) available, but will not affect the general result. Approximately the result is as follows : — CONSTITUTION ALTERATION (FINANCE). Yes. No. New South Wales ... 218,938 244,898 Victoria ... 199,276 239,720 Queensland 79,194 64,731 S. Australia 48,439 50,3r)7 W. Australia 48,730 30,r)o7 Tasmania ... 30,071 20,235 624,648 650,498 CONSTrrUTION ALTERATION (STATE DEBTS). Yes. No. New South Walej ... 152,291 307, (^'W Victoria ... 277,3(13 152,545 Queensland 90,487 48,771 S. Australia 72,194 26,540 W. Australia 57,202 21,7)4 Tasmania ... 41,541 9,689 691,078 566,898 [549] CHAPTER IV. TRADE A:^D commerce. 'J'he subjects of tinance and trade meet in the taxes on trade, whereof the duties of customs are referred to the one or the other according as they are regarded as means of I'aising revenue or of I'egulating and controlling commerce with other countries and fostering local industries.^ The Conmionwealtli power is derived from the grant in sec. 51 (i.) : " Trade and commerce with other countries and among the States," wliicli by sec. 98 is declared to "extend Lo navigation and shipping and to railways the property of any State." Tlie Constitution, therefore, in limiting the federal power to foreign and inter-State commerce, follows the United States Constitution, and not the Canadian Con- stitution which comprehends "trade and connnerce" as a wliole. Tlie power is essentially a " great substantive power," not lending itself to precise detinition, and imparting the utmost of discretion as to the occasion and the mode of its exercise. Nevertheless, here, as elsewhere, tlie Courts are faced with the task oi interpreting a power which, however e.Ktensive, has some limits, while the (constitution itsi'lf gives some directions and imposes sonu' restrictions on the exercise of the power. Australians have an advantage in this — that the similar power in tlie Constitution .-> U.S. 64S, applies the same rule to contracts of marine insurance, and White J. says (p. 655) that tiie attempt to set up a contract of tliis kind as inter-State commerce, ignores " the difference between inter-Statc conunerce or an instrumentality thereof on tlie one liand, and the mere incidents whicii may attend the carrying on of such commerce on the otlier. This distinction has always been observed and is clearh- defined by tiie autliorities. If the power to reguhite inter-State t>oumiercc applied to all the incidents to which such commerce might give rise and to all the contracts which might be made in the course of this transaction tluit power would embrace the entire sphere of mercantile activity in any way connected with the trade between the States."' See also Citizens' Insuranre Co. v. Pardons, L.R. 7 A.C". 111. In the Common- wealth Constitution, " insurance"' is a substantive power of the Common- wealtii Parliament : sec. .")! (.\iv.). .552 THE COMMONWEALTH OF AUSTRALIA. are the basis of all commerce, l)ut do not form a part of commerce.^ Adopting the language of Marshall C.J., in Gibbons v. Ogdenf' we may say that commerce " with other countries" comprehends every species of commercial intercourse with countries outside the Commonwealth. " No species of trade can be carried on between this country and any other to which this power does not extend." " Among the States " means " interminoled with." The commerce denoted is that which " concerns more States than one," as distinguished from the purely internal or domestic com- merce of a sino-le State. " The commerce of a State which Congress may control must in some stage of its progress be extra territorial. It can never include transactions wholly internal, Vjetween citizens wholly of the same community, or extend to a policy and laws, whose ends and purposes and operations are restricted to the territory and soil and jurisdiction of such a community."'^ It has been said of the commerce power in the United States Constitution that it " presents the problem of pro- jecting a plij^sical boundary line as an economic distinction," and hence the line of division must be elusive, and in many eases appear arbitrary. If the subject be " connnerce with other countries and among the States," the power does not stop at the boundary lines of the States, but attaches to the matter from its inception to its termination.^ In the case of transportation, we have to distinguish between ^Railroad Co. v. Penidon, (1873) IS Wallace .") ; Railroad Co. v. Mary- land, (1S74) 21 Wallace 450 ; and the tlisseiiling judgment in the yorthern Securities Caie, (1904) 193 U.S. at pages 393.5. 'i'lie chief criticism upon this last case is that it infringes this principle. -(18-24) 9 Wlieaton 1. "Cooley, Conslilntioiial Law, p. 68. ■•E. P. Prentice, 19 Harvard Law Rtcieii\ p. 171. TRADE AND COMMEKCE. 55o intentions and preparations on the one luind and the com- mencement of the operation of foreit^n transit on the other. The line lias been drawn at the moment when tlie traffic commences its final movement for transportation from the .State of oriiifin to that of destination.^ The character once constituted remains until not merely the end of transit but until the subject of carriat^e has l)een so dealt witli as to become incorporated and mixed up with the mass of property in the State.- When this takes place is a (jucstion upon which the Courts in general were for long careful to guard themselves against laying down any universal rule. ■' The test adopted in Broivn v. Maryland — thf goods in tin- hands of the importer in the " original package " ^ — was very fretjuently criticised, but was at last accepted for inter-State as well as foreign commerce by the majority of the Supreme Court, in default of any more satisfactory test.'' In the special case of intoxicating liquids jjassing into a State the Connnonwealth Constitution does in effect dt'fine the limits of the connnerce power by providing that they shall be subject to the laws of the State as if they had been produced therein (sec. 118). The commerce power embraces not only the thing trans- ported and the actual operation of carriage, but the means ^ Cop. v. Errol, 110 U.S. 517 : — " When tlie prorlucts of the farm or the forest iire collocte.l and brought in from the sutTomidiii<^ country to a town or station serving as an entrepot for that particular region wlietlier on a liver or a line of railroad, sucii products are not yet exports, nor are they in process of exportation, nor is expoitation begun until they are com- mitted to the ('ohuiion carrier for transportation out of tlie State to tlie State of their destination, or liave started on their ultimate pr.ssage to that State." ■Brown v. Marijlmiil, \1 Wiieaton Wl. "See WeHoii v. Missouri, 91 U.S. 27o. The whole subject is very well treated in Prentice and Kgan's Comnurci'. Clause, chapter III., where tlie authorities are set out and examined. * Broirii V. Marybiud, V2 W'heaton 41!) (foreign commerce). 'Afisy V. Hardin, 1.35 U.S. 100. 55 4- THE COMMONWEALTH OF AUSTRALIA. and iustruuieiitalitics whereby coiunierce is carried on.' Tlie liiohways of commerce by land and by water and the vehicles of commnnication of whatever kind are included in the power.'- This leads to some striking developments and eventually to " a competition of oj)posite analogies" — to use Paley's phrase — about which beat the great forces and interests furnishing the constitutional problems of to-day. On the one side we have the principle which includes in the federal power the " instruments of commerce," on the other, the principle which excludes the mere collateral incidents of commerce. Railways and shipping are instruments of com- merce. The federal power will extend to the contract between the carrier and the passenger, the facilities to be given for traffic, and the conditions to be observed for securing safet}^ whether those conditions relate to the pro- vision of appliances, the qualihcations of employes, or the liabilities of the carrier for breach of his duty. Does it extend to the relations between the carrier and his servants ? The Railicay Safety Appluivces Act requiring companies engaged in the inter-State trade to use particular appliances for the safety of the traffic is clearl}- within the federal poAver, and the Supreme Court has held that a railway servant injured by the Company's failure to comply with the Act, is entitled to recover damages against the Com- pany.'' The Employers Liahility Act passed by Congress would probably have been held good if it had been limited ^Gloacf.iter Ferry Co. v. Pennsylvania, lU U.S. 196, 204. -These means " extend from the horse with its rider to tlie stage coach, from the sailing vessel to tiie steamboat, from tlie coach and steamboat to tlie railroad, and from the railroad to tlie telegraph, as these new agencies aie suc(;essively brought into use to meet the demands of increasing popu- lation and wealth :" Pensacola Telerp-aph Co. v. W. U. Telegraph Co., (1877) 96 U.S. 1. See also U. U. Telegraph Co. v. Pendleton, (1S86) 122 U.S. :J47. '■■■Johnson v. liailroad, (1904) 196 U.S. 1. TllADE AM) ( nM.MKROE, OOO to tlie einp]o3'inent of persons in inter-State commerce.^ An Act of Conoress prohibited ad\-anccs by shipowners to sailors on foreign-tioing vessels, and the Supreme Court lield tlie Act to be intra vlrcKr On tlie other hand, tlie Hiiili Court ol" Australia, declaring; that the ambit of tlie commerce power could not extend to end^race matters the effect of which on commerce was not direct, substantial and proximate, expressed the opinion that conditions of employment were not of this character, and added that as at present advised thej* considered that the legislative power of Parliament under this head did not extend further — if it extended so far — than to forbid for causes aticcting inter- State traffic, specific persons from being employed in such traffic.' Lastly, the Supreme Court of the U.S. has hehP that a provision in the Natiimal Arbitration Act imposing penalties for dismissing an employe on account of member- ship of a labor organization is vltrOj vires. This ([uestion — where the line is to be drawn between connnerce and its instruments on the one side, and the incidents which precede, attend or consecjuentiall}' aftect commerce on the (jther — is one ui' the forms in which the }»rol)lem of power over " trust and combinations" presents itself in American constitutional law. ' It thus becomes a question of the application of the law, which in many eases e(iually sound and impartial lawyers are likely to answer differently. But there is anotlu r principle which enters into these cases. 'I'he " commerce power " not merely im- ports the regulation oL' counntTce, but extends to the pro- ^Kini>Joyers Liuln7if>/ Casf-s (UtOT) '_'(>7 U.S. -«(>.■>. ■'I'utti-rmn v. Hark- Eadova, (\mi) 190 U.S. IGO. "Federated Amiilf]Mnn ltd Hail imy Service Association v. N.S.W. Tratjrc Kmployrs Aiixociatioii, (19(t4) 4 CI.. I!, al p. .'545. 'Adair V. U.S., (19(>7) '-'OS U.S. l(j|. 'Hooper v. California, (1S95) Lw \].^. (548: AddijMon Pii>i!< Co. v. U.S., (1899) 17.") U.S. -228; Xorthem .'Securities Ca^^e^, (i'.»04) 19;i U.S. 197. 556 THE COMMONWEALTH OF AUSTRALIA. tectiou of coiiiiiicice, and particularly to the removal ot" all obstructions to connnerce. Congress may order the removal of any physical obstacle to the navigation of a cliannel. But the federal power is not limited to dealing with natural obstructions; it will include any forcible attempt by persons to interfere with the actual transit, and it is on this j^rinciple that it has intervened in strikes^ : — " A strike of men employed on an inter-State railroad is not in restraint of trade between the States if it is confined to the contract of employment ; but if as a means of making the strike more effective the strikers seek to obstruct the movements of trains from State to State, they become amenable to the provisions of the Federal Act"- against combinations in restraint of trade. In this class of case there is a direct interference, present or threatened, with " commerce in being." Combinations of workmen not to handle inter-State traffic,'^ or combinations of carriers to refrain from or to limit competition in inter-State car- riage,^ are a degree more remote, but still in such a case the subject matter of the agreement is the inter-State transit itself, and the bearino- of the combination and the acts done thereunder is direct and innnediate and not merely consequential. We move further again when w^e find that agreements or combinations between manufac- turers in one State not to sell in competition with other manufacturers in another State are treated as within the federal power.'' Here the subject is not commerce in being, ''E.g., In re Dths, (1895) loH U.S. 56-4. -Freuiid, Police Power, p. 355. ■Thmnai v. C, N.O. cO T.P. Bailroad Co., Cyl Fed. Rep. at p. 803; Toledo A. A. Jb 31.1!. Co. v. Pewfti/lvania Co., 54 Fed. Rep. 730, 738. *U.S. V. Trans-Missouri Freiijht Association, (1897) 166 U.S. '290; U.S. V. Joint Traffic Association, (1898) 171 U.S. 505. "Addyston Pipes Co. v. U.S., (1899) 175 U.S. -211. See a.ho Berne at v. Xational Harrow Co., (1902) 186 U.S. 70; Montatjue v. Lowrey, (1904) 193 U.S. 38. I TRADE AND COMMERCE. 5o7 and tlie agreement etiecfcs no more than each individual has a riolit to do — i.e., to refrain from eng-aijino; in connneree. It is true that acts done in combination may liave a different complexion from acts done by single individuals without con- cert ; but it is plain that we are here approaching, if we have not passed, the border line wliich separates obstructions to inter-State commerce from those consequential and inci- dental effects upon connneree which admittedly lie outside the federal power. Of the last, an illustration is found in the case of Hopkins \. U.S.,^ where an agreement of salesmen in different States to charo-e a certain rate of connnission on the sale of cattle coming from other States, was lield to be a subject lying outside the federal power, for thougli no doubt it had an effect on Inter-state com- merce, that was not direct and immediate, but merely incidental and consequential. The case of the Noi^thern Securities Go. v. JJ.Sr- represents the last stage reached in the process of stretching out the commerce power. The company was what is called a " holding corporation," i.e., one formed for the acquisition of the whole stock of certain other companies whose stock holders received in return stock in the new corporation. The companies whose stock was so acquired were railroad companies owning and working two of the principal roads competing for the east and west traffic of the United States. A declaration was sought that the corporation was an illegal combination in restraint of trade within the SJicrman Act 1890, and of course the application of that Act raised the (juestion whether an operation of the kind here under- taken was within the federal power over " connneree among the several States" within the incaning of the Constitution. MlSltS) 171 U.S. .ITS. NuiiR'ious illiistralions of " incidental " effects are contained in the judgmenta •^(1904) 19:i U.S. 197. 558 THE (JO.M.MU.N WEALTH OF AUSTRALIA. Here, it will be observeh, 1 C.L.R. 585 ; Jiaxler v. ConnnisftionerH of Taxation, 4 (". L. It. 1122. 500 THE COMMONWEALTH OF AUSTRALIA. down general principles applicable to commerce generally or to intercourse other than by means of railway's, the only question appears to be how far we approve of the ratio decidendi. But in the particular case of railways, the Commonwealth Constitution contains a number of distinct provisions which are not only important in themselves, but have a bearing on the extent of the commerce power in relation to the State railways. This requires that the rail- ways in the Cfunmonwealth should be separately considered. Navigation and Shipping. The control over the instruments of cominerce may, and in some respects must, bring under the operation of the federal power, persons and things not themselves engaged in trade with foreign countries or among the States. Statutes laying down rules of navigation, or prescribing the lights to be carried by vessels at sea, to take a plain example, must be observed uniformly or they are valueless. They apply therefore to vessels engaged in the domestic commerce of a particular State if they are on the high seas or in inland waters accessible for foreign or inter-State commerce.^ The power in such cases may be regarded as one of necessity, and it has in the case of navigation on the high seas been imputed to the responsibility of the National Government in all matters of external concern : though not necessarily " trading " w'ith foreign nations, a vessel on the hio-h seas is " navioatino; " with them.'- In the United States the federal power has extended itself over the whole range of " shipping law," so far as concerns shipping upon the high seas and " the public ^Warint/v. Cltrk, (IS47) 5 Howard 441. See the numerous cases col- lected in Prentice and Egan, pages 101 el seq. The federal Statute will apply even to "State Instrumentalities" — Oyster Police Steameri^ of M'lri/land, 131 Fed. Red. 763; Governor Robert McLean v. U.S., 35 Fed. Kep. 92G. -Lord V. Steamship Co., (1880) 102 U.S. 541. I TRADE AND COMMERCE. 561 naviofable waters of the United States," which inchide such waterways as " form by themselves or in connection with others a continuous highway over \vhich commerce may be carried on between our own States or with foreign countries in the customary way of carrying on commerce by water." ^ This extension is ascribed not to the commerce power itself, but to the p-rant to the federal courts of " all cases of admiralty and maritime jurisdiction " as to which it is held, first, tliat the jurisdiction itself is not limited by the English bounds of Admiralty jurisdiction, but applies, as stated above, in all public navigable waters of the United States; secondly, that the jurisdiction necessarily connotes a corresponding legislative power in Congress to ensure uniformity in a matter which from its nature re(|uires an uniform rule.- " It is the character of the traffic as internal, inter-State or foreign, and not whether it takes place over a road or river, by boat or railway, which must be con- sidered in applying the commercial power ; but admiralty jurisdiction has a wider scope, and may be exercised over all boats using the navigable waters of the United States. Vessels use the same waters whether they are engaged in foreiirn or domestic trade ; and as disorder and litigation would result if they were governed by ditt'erent rules, Congress may make and the admiralty enforce such regula- tions as are requisite to give certainty to title, maintain order and prevent the collisions wliich may be as disastrous on a river as at sea. The craft wliich is plying to-day between places in the same State may to-mon-ow extend her voyage to another, or jaroceed to sea ; and it is there- fore essential that she in connnon with all others which are 'The Montello, 11 Wall.-ico 411, 415. -Warimj v. Clark, (1847) "> How. 441 ; While Bank v. Smith, (1868)7 Wallace 646 ; In re Garnett, (1890), 141 U.S. 1. 502 THE COMMONWEALTH OF AUSTRALIA. or may be engaged in coasting or foreign trade, sluill be governed by the same rnle."^ The Common weal til Constitution connnits to the Federal Judicature matters of " admiralty and maritime jurisdic- tion " (sec. 76 (iii.) ). It commits to the Commonwealth Parliament power to make laws with respect to " external affairs" (sec. 51 (xxix.)); it declares that the commerce power extends to "navigation and shipping" (sec. 98); and establishes that " the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth " (sec. v.) In these circumstances, it is not likely that the Commonwealth power in respect to the modes and instruments of naviga- tion will be more restricted than the power of Congress. The great practical difficulty of drawing a geographical line in matters of navigation and shipping,^ together with the importance of establishing a single authority thereon, would be strono; reason for concludincr that the whole matter belongs to the Federal Legislature.^ ^Hare, American. CowilUutional Law, p. 1009. ''Lord V. Steamship Co., (1880) 102 U.S. 541. ="011 the subject of ilaritime Law and Jurisdiction in Australia, see two articles in the Commonwealth Law Review, vol. ii., (1905) by F. L. Stow, who takes a narrower view of federal aiithority than is here submitted. [5G8] CHAPTER V. THE EXEUCISE OF THE COMxMERCE POWER: EXCLUSIVE OR CONCURRENT— FREEDOM OF TRADE AND COMMERCE. The Constitution contains several provisions wliicli operate as limiting or directing the exercise of the commerce power. The most elaborate of these are considered in relation to the Railways. They are supplemented by the provisions relating to tlic Inter-State Commerce Commission. Sec. 90, which applies to laws or regulations of trade and commerce, as well as to revenue laws, the proliibition against giving preference to any State or any part thereof over another State or any part thereof, has been dealt witli mider tlie head of taxation. Sec. 100 declares that the Commonweal tli sluill not by aiiv law or regulation of trade or commerce abi'idge tlie ricrht of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. Tliis section assumes that the only power Avliich the Com- monwealtli has to affect tlie matter arises under trade and commerce ; and the onl}' ground of federal control over these waters is as tlie guardian of inter-State navigation. Navio-ation is committed to tlie Comnionwcalth, irrigation belongs to the States, and the federal power must doiuinate and prevail over the State power. This is dt'iennined by the Supreme Court of the United Siati's in U.S. v. 5G4 THE COMMONWEALTH OF AUSTRALIA. Rio Grande Dam and Irrigation Co.} and Kansai^ v. Colorado.^ Sec. 100 complicates this position by requiring the Conniionwealth in the exercise of its power of protect- ing and promoting navigation, to respect the reasonable user of the waters for conservation and irrigation. What is a " reasonable user " must be determined by the Courts, at least in the last resort ; and " reasonable " will mean here as elsewhere " reasonable in all the circumstances of the case." The American cases just referred to — U.S. v. Rio Grande Co. and Kansa.s v. Colorado — show that the right of a State to abstract waters is in any case subject to the ricfht of other States to do the same, and that a balance has to be struck between them on grounds of reasonable- ness.^ It remains to be determined whether, apart from legislation altogether, similar reasons do not prevent an abstraction of water to the impairment of ordinary naviga- tion ; the section does not determine that there is a subsist- ino- ritrht of reasonable user for conservation and irrigation which is paramount to all rights of navigation.* The commerce power is also limited by sec. 92 of the Constitution, the etiect of which must now be considered. Freedom of Inter-State Trade and Commerce. — Sec. 92 declares that — " On the imposition of uniform duties of customs, trade commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."^ M1899) 174 U.S. 690. -(1906) 206 U.S. 46, S;j-S6. 'See 206 U.S. at p. 100 and following pages for an illustration of the factors ■which enter into the consideration of such a case. *The subject is fully discussed in Quick and Garran, pp. 890 et seq., and in Clark's Aiistriilian Constitutional Law, Chapter 6. '■'The opinion of the Attorney-Ceneral (Hon. P. McM. Glynn) given in relation to the South Australian Fruit and Vegetable Protection Act, and the proclamations thereunder, appears to be in accord with the views expressed herein. See Parliamentary Papers (Commonwealth), 1909, No. 63. COMMERCE POWEH. oGo Tlie section is general in its form, imposing restraint both on Commonwealth and State action. It was commended to the Conv^ention as " a bit of layman's language on which no leo;al technicalities can be built." The case was an unfortunate one for the illustration of tlie layman's art, for of all vague and question-begging terms in tlie political v.ocabulaiy, " free " is perhaps the worst. The first aid to interpretation is the context — noscitur a .s'oc'iis. The provision occurs in a group of sections, be- ginning with sec. 86, wliicli deals with customs, excise and bounties, their imposition, collection and distribution. The most obvious application of sec. 92 is to prohibit the im- position of an}' like duties upon inter-State trade. But its terms extend beyond tliis case ; and it may con- fidently be assumed that they proliibit every cliarge, by wliatever name it may be called or on whatever pretext it may be levied, which is in substance a tax or restraint on the intercourse of persons or tlie connnercein goods amongst the States. Thus, in the one case under the section which has come before the Hio-h Court — Fox v. Rohhins^ — a West Australian Act imposed a licence fee of £2 for tlie sale of wine the product of fruit grown in Western Australia, while the only licence that could be ()l)tained for the sale of wine made from fruit grown in any other part of Australia, cost £oO. It was held that this was an inrtingement of sec. 92; and Griffith (IJ. observed that the provision of the Con- stitution would 1)(' (|uito illusory if a State could impo.se disaVjilities upon the sale of products of other States which were not imposed on tlie saU' of home products.- Barton J. calls attention to the two-fold restriction which the Con- stitution puts on the States, They must not tax the article so long as it remains a subject of inter-State commerce; and whih\ on I hat character ceasing by the ond of transit ' ( 1 9(19) s ('. I .. I ;. 11'). -S.C. at pp. 11 '.I- 1 J* I. 566 THE COMMONWEALTH OF AUSTRALIA. and the incorporation of the object with the domestic com- merce of the State, it becomes a proper object of State taxation, still the tax mnst be laid e([ually on all goods of the kind to be taxed without discrimination by reference to origin. " And what I say of taxes applies to other imposts or burdens."^ From the acceptance of leading American authorities by the High Court in Fox v. Rohhins, it is clear that we may be guided by the mass of case law which has grown up in the United States, defining a tax upon inter-State commerce within the imj^lied prohibition upon State power. The difference in the two Constitutions in respect to taxation appears to lie in the fact that while the absence of an express prohibition in the United States has led to the establishment of an implied restraint upon the States only, the Commonwealth Constitution expressly lays a prohibi- tion in o;eneral terms not distinguishing between the Com- inonwealth and the States Legislatures. Charges for ser- vices rendered are not ejiisdem generis; they are in pro- motion and not in hindrance of commerce. Charo-es for railway services, reasonable tolls for the use of ports and improved waterways may be imposed. But a charge for services may become a tax if the charge is unreasonable, or if it is used as a pretext for impeding inter-State inter- course. The vexed matter of cliarges for inspection is specifi- cally dealt with by sec. 112, which admits the State power to impose such charges, but puts it under the complete control of the Commonwealth Parliament. In a Tasmanian case- it was held by Clark J. that an income tax on business done in Tasmania, which was fixed at a minimum amount of £50 in the case of foreign com- panics, was not an infringement of sec. 92, as it was not in iS.C. at pages 12,3-4. -In re Anstralaman Automatic Wtiyhinri Machine, (1905) 1 Tas. L.R. 11">. COMMERCE I'OWER. 507 substance equivalent to a tax upon the importation or exportation of goods, or a tax on the passage of persons from one State to another, or a tax upon tlie transmission of information from one State to another ; the business which was the subject of taxation did not necessarily in- volve any intercourse with another State in tlie daily conduct of it. In attempting to realize the further significance of sec. 92, we are warranted, according to decisions of the High Court, in considering the decisions of the United States Courts in regard to cognate matters, with which it nuist be taken that the framers of the Constitution were familiar.^ After long controversy, the Supreme Court in 1851 decided in the case of Cooley v. Board of Wardens of the Port (if Pliiladel'phici^ that the power of Congress to regu- late connnerce with foreign nations and among the several States, is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system or plan of regulation. Wlicre the power of Congress to regulate is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be left free fi-om any restrictions oi" impositions, and an}- regulation ol' the sulyect liy tlic States except in matters of local concern only, is repugnant to suelt freedom. But the power to regulate connnerce covers a vast field, containing man\' and exceedingly various subjects, (juite unlike in tlieir nature, some demanding a single uniform rule, others as imperatively demanding diversity; in the latter case, in the absence of legislation ])y Congress, the State Legislature may properly make piovision, though the ^Fox V. J,'ohln»s, (1909) S C.L. R. 115, at p. 112. See Siho D'Emden v. Peddf-r, (1<»04) 1 C.L.K. 91 at p. ITJ ; Municipitl Counril of Sydiuf/ \\ Oommoiiicecil/li, I C.L.R. at pp. 2li~, 240 ; linxUr v. Commissiomia oj Taxation (X.X. 11'.), 4 C.L.R. at pp. \\'22 et seq. "(isr.l) 12 llowanl, 299. 568 THE COMMONWEALTH OF AUSTRALIA. matter is one of inter-State commerce. Finally, State legislation for the protection of the life, liberty, safety, health, and comfort, of its people, and for the protection of their property — the exercise of what is known as the " police power " — is not invalid merely because it aftects inter-State commerce, if it does not extend beyond what is reasonably necessary for its legitimate purpose. But in all cases, of course, the legislation of the State so far as it affects inter- State commerce is liable to be over-ridden by an exercise of tlie paramount power of Congress.^ The main difficulty of these principles lies in their application — in determining what matters are of national concern requiring one uniform set of regulations, and what are proper for local regulation,'^ though the statement of the principles themselves is not wholly free from doubt. ^The principles me stated and the cases c'}7iussen\'. Idaho, (1901) 181 U.^. 198; Kimmiskx. Ball, (1889) 1-29 U.S. 217 ; A»hdl V. Kaiim^, (1908) 209 Q.S. 251. ■ PlummRv V. ^fa>isachnsetts, (1894) loo U.H. 461. See aiUe, "The Police Power," p. 34o. ^^1907) 209 U.S. 2oI. -'S.C. at p. 2."). — I COMMERCE IMiWEi;. 571 it is .strono;er than the Amevican Constitution.^ It is secured also against any impairment by the Connnonwealth Pailia- nieut ; that Parliament cannot, like Congress, remit the obligation of the States to respect the freedom. For the rest it is submitted that the police power of the States, so far as it relates to the introduction of persons or goods, is not less than in America, and it may be noted that sec. 112 does not confer a power to establish and execute inspection laws, but is a distinct recognition of the inde- pendent existence of such a power, while section 113, sub- jecting intoxicating liquors to the laws of the States imme- diately on passing therein, is designed to exclude the operation of a particular decision of the Supreme Court of tin- Tnitcd States,- and therefore itself strengthens the view tiuit the American authorities genorally have a special relevance to this matter. It has been already observed that sec. 92 differs from the implied restraint of the American Constitution in that it is superior to the will of the Commonwealth Parliament, which cannot authorise impairment by tlie States. It also imposes restrictions upon the Parliament, which cannot by any Act of its own impair freedom. In one sense, every condition or regulation laid upon inter-State commerce is a restriction of its freedom. Hut in the ease of the Common- wealth Parliament, the Constitution itself gi\es an express power to make laws with respect to trade and commerce amonii' the States, and sec. !)2 nmst be read in such a wav as to give scope to this power. That it undoubtedly pre- vents the Commonwealth Parliament from imposing an}' tax on this commei'ce has been shown abo\e. It follows ^F(,x V. /,'oh'n'if<, (l!l()!l) S C.L.H. 11,'). S.C. p. 1_':5 aiultf., /// re Jiahrer, 140 U.S. r)45. -Liisij V. Hardin, (1890) 135 U.S. loi). .Sec. IKi tloes not authorise tlirectly or indirectly tlie taxation of extra Stair li«iuor — Fox v. liobbiiii, (190't) S C.L.i;. II.'.. 572 THE COMMONWEALTH OF AUSTRALIA. tliat it equally prevents such discrimination by the Com- monwealth as was attempted by the State in Fox v. Rob- hins} If the freedom of trade, commerce and intercourse, under sec. !)2, still leaves scope for the operation of the police power of the States, it must it would seem leave scope also, not indeed for a police power of the Common- wealth eo nomine, but for the imposition of whatever restraint may appear reasonably incident to any power of the Commonwealth, as well as for the commerce power to over-ride tlie restraints of the State police power. Thus, if the Commonwealth power of (juarantine extends to inter- State movements, it can be exercised notwithstanding sec. 92. At what stage legitimate regulation becomes unjusti- fiable restraint may furnish some very difficult problems, just as it does in defining the limits of the police power of the States. A typical case of doubt seems to be the require- ment by the Conunonwealth Parliament of a licence to engage in inter-State trade or any brancli of it, ejj., the coasting; trade. The last consideration to be borne in mind in connection with sec. 92 is that it does not relate to trade with foreign countries; it is confined to trade, commerce and intercourse among the States. 1 (1909) 9C.L.K. 11 -J. i [573] CHAPTER VI. THE INTER-STATE COMMISSION. Sec. 101 declares that there sliall be an luter-State Com- mission with sucli powers of adjudication and administra- tion as the Parliament deems necessary for the execution and maintenance, within the Commonwealtli, of the provi- sions of the Constitution relating to trade and commerce, and of all laws made thereunder. In that the section looks to the " execution and mainten- ance " of the Constitution and laws of the Commonwealth, repeating- the words by which the executive power of the Commonwealth is defined by sec. 61, it suggests that the main character of the Commission is to be .souglit under the head of Executive Power, and in the cases of Iluddart Parker V. Moorhead, Appleton v. Moorhead} it was argued that the section established distinct administrative machinery for the enforcement of the provisions of the Constitution and laws relating to trade and commerce, thereby derogating from the otherwise unrestricted discretion of Parliament in deter- mininir the mode and the means of executing its laws. The Higli Court, without entering into the interpretation of the section more largely than the occasion required, laid that the section could not be treated as absolutely exclusive of all other executive power over the subject, which would 1(1909) 15 A.L.ll. -241 ; 8 C.L.ll. ;«0. 574 THE C()MM()N\VEA];ril OF ATSTllALIA. amongst other tilings involve that the wliole administration as to trade and eonnnerce was in abeyance until tlie Commission was constituted. O'Connor and Hio-o-ins JJ. regarded the section as mandatory so far as the establish- ment of the Commission was concerned, but as to its powers, they were such merely as Parliament conferred upon it,^ leaving the Parliament its general power of disposing according to its discretion for the administration of laws of trade and commerce. A further objection to the construc- tion suggested was that the Connnission's powers include adjudication as \vell as administration, and if its powers were exclusive in one direction it was hard to avoid the conclusion that they were exclusive in the other. The position is briefly put by Isaacs J.- : " It is hard to perceive the limit of such a contention. Ministerial control, and to a great extent judicial action, would be entirely superseded in the ordinaiy operation of government, by a body entirely independent of the Executive, and not responsible to Parlia- ment, and not necessarily trained in the law. Its duties could not be fulfilled without an immense staff' all over Australia operating side by side with, but altogether separate from, tlie regular members of the Public Service." The Commission was suggested by the Inter-State Com- merce Commission in the United States, and the Railway and Canal Connnission in the United Kingdom, and may be expected to exercise powers of each of those bodies. The Inter-State Commerce Act 1887 (U.S.) provided for the appointment of a Commission to carry out the objects of the law, which were in the main to secure just and reason- able charges for transportation; to prohibit unjust dis- crimination in the rendition of like services under similar circumstances and conditions ; to prevent undue or un- M1909) 15 A.L.R. 241, at pp. 257-S, 274 ; 8 C.L.ll. at pp. 376, 418. 2]o A.L.R. at p. -262 ; S C.L.II. at p. 387. THE INTER-STATE COMMISSI* )X. 575 reasonable preferences to persons, corporations, and localities; to inhibit greater compensation for a sliorter than for a longer distance over tlie same line ; and to abolish com- binations for the pooling of freights. The Commission is a special tribunal whose duties though largely administrative are sometimes semi-judicial ; but it is not a Court em- powered to render judgments and enter decrees.^ It in- vestigates facts ; reports and makes orders upon them ; but to enforce those orders it must resort to the Courts, and the Courts may investigate the whole merits of the controversy, and form an independent judgment. The Railway and Canal Commission in England con- stituted by the Act of 1888, is empowered to order the Railway Companies to obey the provisions of numerous Acts of Parliament, under which they are bound amongst other things to afford reasonable facilities for trathc, and are forbidden to give undue or unreasonable preference or advantage in favour of any person, company, or description of traffic. Such undue preference jnay arise from a differ- ence in treatment to any trader or class of traders, or to the traders in any district in respect of the same or similar merchandise or of the same or similar services. The Com- mission may intervene, not merely at tlx^ rccpu'st of an individual ulleii'injj; the iurriuuenient of his lii'lit. but also on the complaint of the Attorney General, the Uoard of Trade, and various local authorities, or associations of traders or freighters, without j^roof that the body is aggrieved by tlie matter complained of, if the Board of Trade has certified the body to be a proper one. In addition to ordering the Company to redress the wrong for the future, the Com- mission may award damages to a person aggrieved in full satisfaction of any claim which tin- pai ty would have had by reason of the matter of conijilainl. The Connnission ^Rorer, InltrSlaU Law, p. \'2\n. I 57G THE COMMONWEALTH OF AUSTRALIA. lias now full power to carry out its awards, and is armed with the powers of a court of record. In the Commonwealth Constitution the character of tlie duties wliich can be exercised by the Commission exclu- sively (see succeeding chapter), as well as the fact that some of its functions are judicial, accounts for the mode of its constitution. The members of the Commission hold office under the same protection against removal and against diminution of salary as the justices of the federal Courts, but their appointment is for seven years only and not for life (sec. 102). There is nothing in the Constitution, how- ever, to prevent their re-appointment. Note. — In the Session of 1909 an Inter-State Commission Bill was intro- duced by the Government to the Senate. The Commission was to be consti- tuted of tiiree members with power to entertain complaints of an}' peison in contravention of the commerce provisions of tiie Constitution or of the Bill. Tlie persons wlio might be complainants were defined and included States and State authorities. The relief that might be given included damages, injunction, the annulment of improper regulations and the prescription of future action, as by the fixing of rates for services. The Commission was to be a Court of record, with power to enforce its orders. The Bdl declared that all rates charged by common carriers should be just and reasonable, and exercised the power under sec. 102 of the Constitution to forbid discrimina- tion and preferences by State railwa\' authorities, and in the case of other persons forbade discriminations and preferences to States, persons, localities or descriptions of trafiic. The Commission was also charged with the duty of investigating and diffusing information in respect to a large number of matters affecting trade, including the operation of any Tariff Act. It might also when required by the Government inquire into measures affecting the rivers whether in relation to navigation or irrigation. Finally, the Bill contained provisions in execution of the agreement made between the Federal and States Governments at the Conference held in August, 1909, for enabling States to refer to the Commonwealth the settlement of industrial questions "for the purpose of preventing unfair competition in one State, whereby the establishment or maintenance of fair industrial conditions in another State is hindered." The Bill did not get beyond the Senate, and lapsed when the prorogation was succeeded by the dissolution of Parliament. [577] CHAPTER YII. THE STATE RAILWAYS. The railways of Australia may be considered from many points of view. Not only are the}', in a country of vast distances and few navio-able rivers, almost the sole means of internal commerce, but, oM'ned by the State, they are at once sources of public revenue, the principal object on which the State debts have been incurred, and assets on which the credit of the Government in some sort depends. They are also the means whereby the resources of the countr}', including a great part of the public estate, are developed. We must add to this tlieir importance in rela- tion to defence and the internal police of tlie country. In these circumstances it is not surprising that we find several provisions in the Constitution concerning th»^m. Of the legislative powers of tlie Connnonwealth Parlia- ment the following ;vpi>ly in teniis to railways. 1. I'radc and commerce \\itli other countries and among the States. Sec. 51 (1). This article is the subject of authoritative explanation or connuentary under " Finance and Trade," as follows : — Sec. 98. " The power of the Parlia- ment to make laws with respect to trade and connnerce extends to naxigation and shipping, and to railwa3's the property of any State." Sec- 102. Tlie Parliament ma\ by ain- law witli respect Oo 578 THE COMMONWEALTH OF AUSTRALIA. to trade or commerce forbid as to railways any preference or discrimination by any State or any authority constituted under a State if such preference or discrimination is undue and unreasonable or unjust to any State, due regard being- had to the responsibilities incurred by any State in connec- tion with the construction and maintenance of its railways. Bub no preference or discrimination shall within the mean- ing of this section be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter- State Commission. Sec. 104. Nothing in the Constitution shall render un- lawful any rate for the carriage of goods upon a railwaj^ the property of a State if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equallj' to goods within the State and to goods passing into the State from other States. It will be observed that sees. 98 and 102 relate expressly to the trade and commerce power, and therefore are limited to trade and commerce with other countries and among; the States, while sec. 104, in so far as it vests power in the Inter-State Commission, is subject to the provisions of sec. 101, which in constituting the Commission limits its func- tions to the execution and maintenance of the commerce power and the laws made thereunder. 2. The control of railways with respect to transj)ort for the naval and military purposes of the Commonwealth. Sec. 51 (xxxil). 8. The acquisition witli the consent of a State of any railways of the State on terms arranged between the Commonwealth and the State. Sec. 51 (XXXlii.). 4. Railway construction and extension in any State with the consent of that State. Sec. 51 (xxxiv.). In addition to these express provisions, sec. 92, establish- THE STATE RAILWAYS. 579 iiifj tlie freedom of trade, coniiuerce and intercourse anioncr tlie States, must he kept in mind. The proper conclusions to be drawn from tlie enumera- tion of powers form some of the most difficult problems of construction which I lie Constitution presents, particularly in the bearing which this enumeration has in relation to other powers in the Constitution which may possibh^ affect tlie railways, e.g., the carriage of the mails, defence, concilia- tion and arbitration. Tiio State Raihuay Servants' Case ^ afforded the occasion for a consideration of some of tliese problems. In that case the ([uestion was whether the Com- monwealth Parliament had power to apply the Common- wealth Conciliation and Arbitration Act 1904, to disputes arising between a State Government and its railway employe's. The High Court held, first, that, in a Constitution presented for acceptance to the whole community, where a particular matter relating to the respective powers of the Common- wealth and States was specifically dealt with, it was proper to infer an intention to invite the attention of the electors to that subject-matter, and the proposed manner of dealing with it: that consequently the maxims of interpretation expressum facit cessare tacUum and expressio unius est exclusio alterius were applicable in a higher degree than in the construction of ordinary contracts or ordinal y Statutes.- Hence, the fact tliat State railways were in various cases the subjects of specific grants of power to the Common- wealth Parliament, was strong reason for tliinking that they were not included in the general terms of sec. 51 ^Tht Federated Amal;/amnled Government Railway and Tramn-ay Ser- vice Association v. .V.5. IC. Hailmu, Traffic Kni/,loi/cs Association, (Iflor.) 4 C.L.R. 488. -P. .y.U. See also p. f)!!), wIum-o (Willith C.J. cite? tlie remark of Jes-'cl M.K. ill K.v. parte Stephenx, ;i Cli. Div. G.ltl, GUn, i-allinfr attentioii to the well-known rule tluit '"where liiere is a special alHrinative power given wiiicli would not be recpured because there is a general power, it is always read to import the negative, aiul that nothing else can be done."' I 580 THE COMMONWEALTH OF AUSTRALIA. (xxxv.) :-^" Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." Secondl}', the Court held that both because the State was a self-determining power not subject to any arbitrary distinction between governmental and non-governmental functions (p. 539), and because at the time of the adoption of the Constitution the railways were owned and worked by the State Governments (p. 539), the railways were instrumentalities of the States. Thirdly, they applied to the present case the principle of UEmden v. Pedder} in favour of the immunity of instrumentalities, holding that the authority of the Commonwealth Parliament to inter- fere with State instrumentalities extends only so far as it is conferred in express words or Iw necessary implica- tion ; that the alleged power was not in the present instance conferred by express words, and that any implication that might otherwise arise was excluded by the counter-impli- cation that it was not intended by the framers of the Constitution to authorize any such interference except for the specific purposes and within the siDCcific limits expressed or necessarily implied from the nature of the special power in question, such as for instance the power to regulate currency, weights and measures, and bankruptcy. The power to make laws with respect to conciliation and arbitration (sec. 51 (xxxv.)) on these principles did not extend to the State Railwaj-s (p. 539). The commerce power on the other hand was expressl}^ declared to extend to State railways (sec. 98) but («) it was of course limited to those railways as instruments of inter-State commerce while the Act under considenition was not so limited (p. 546), (h) the matter here dealt wdth — the general conditions of employment — was neither commerce nor such that its M1904) 1 C.L.R. 9L THE STATE RAILWAYS. 581 effect ui^on commerce was direct, substantial and proximate (p. 545). From this judgment it may be concluded that the Com- monwealth may not embark on railway construction or extension in any State without the consent of the State, ^ whether for defence, the carriage of mails, inter-state commerce or any other purpose. It is clear also that the power of expropriation for national purposes, given generally by Article xxxi., and expressly applied to property of the State, does not apply to State railways. Whatever the purpose of such acquisition, the State railways, or any pa^rt of them, can be acquired only with the consent of the States concerned on terms arranged between the Connnon- wealth and State (xxxiii.) The inference to be drawn from Article xxxii. is less clear. The High Court gives to " control " a very wide interpretation — it embraces not merely " physical control," but " regulation ;"- and it may fairly be inferred that in neither sense may it be exercised over State Railwaj^s as incident to any particular power of tlie Commonwealth which does not \n terms apply to the State Railways. Thus, it would appear that the Commonwealth could not under its postal power claim to run its own trains upon State Railways, or require that trains should be run at special times, or arbitrarily dete'rmine the rates at which postal matter should be carried by the States. But the High Court appears to go further, and to inler from Article xxxii. an intention that no " control," in the enlarged sense of the term, should be exercised over the State Railways even under the counnerce power. Here, 'In the United States Congress may autliorize the construction of inter- Slate railroads: California v. Central Pucijic h'ai/road Co., (18.SS) 127 U.S. 1 ; Lnxlon v. North Rimr Bridf/e Co., (1894) 153 U.S. 525. ■Federated Amal. '■■ii>. PI), ms-'.). * lb. pp. 5,"J'2.j tl neq. P.P. 19()i), No. (i. 51)2 THE COMMONWEALTH OF AUSTRALIA. the sources of the water supply of the area, gave tlie State's consent to the construction of a railway from the Seat of Government to Jervis Bay, agreed to the surrender to the Commonwealth of two square miles at Jervis Bay, and sanctioned the conduct of electrical power by the Common- wealth to the Seat of Government. The mode of sfovernino- the area is of course left to future provision, but the State laws in operation are preserved subject to the para- mountcy of federal law, while the State jurisdiction over any State line of railway in the proclaimed area is also preserved. A last attempt to re-open the whole matter failed and the Bill was passed through both Houses. The necessary legislation on the part of New South Wales was enacted in the Seat of Government Surrender Act 1909. The Constitution by sec. 52 declares that " all places acquired by the Commonwealth for public purposes " are like " the seat of government " subject to the exclusive legis- lative power of the Commonwealth Parliament. According to American authority, such a provision carries exclusive jurisdiction of Courts and executive authorities.^ As the Commonwealth has power to acquire compulsorily such property as it requires (sec. 51 (xxxi.) ), the Commonwealth may to this extent, it would seem, excise territory from State control without State consent ; this, indeed, seems to be acknowledged by the term " or otherwise acquired by the Connnonwealth " in sec. 122. In one respect the " territories " of tlie Commonwealth, whether within or without its limits, are more favourably placed than are " territories " of the United States. In America the territories can not return members to Con- gress, though they are suffered to send delegates who may lay their views before the Legislature. Sec. 122 of the ^See Hex v. Bawford, (1901) 1 S.R. (N.S.W.) 337, and cases there cited. See also ante, p. 289. TERRITORIAL ALTERATIONS. 593 Cominonwealtli Constitution definitely includes in the power to make laws a power to allot representation in either House of the Parliament to the extent and on the terms which Parliament thinks tit. New States.— By sec. 121 the Parliament may admit to the Connnonwealth or establish new States. " Admit to the Conmionwealth " obviously relates to communities with- out the Connnonwealth, over which the Parliament has no power, viz.. Colonies such as New Zealand or Fiji. In this class of case the power of admission is of course subject to the agreement of the community admitted, as signified by the authority competent to act therefor. " To establish new States " relates to connnunities within the Connnon- wealth, e.g., the territories which it may be determined to raise to the dignity of States (sec. VI. of the Act). It is probable that the Parliament can not convert the seat of government or places acquired for public purposes into a State. The power to convert a territory into a State, or to establish a State in a territory, may be exercised by the Pai-liament without the concurrence of any other authority. By sec. 124 the Parliament may form a new State b}' separation of territory from any State of the Connnon- wealth, l)ut only with the consent of the Parliament thereof, or may form a new State b}- tlic niiioii of two or more States or parts of States, but only witli the consent of the Parliaments of the States attected. In admitting; or establishing: new States the Parliament may make and impose such terms and conditions, including the extent of representation in either House of tin* Parlia- ment, as it thinks fit (sec. 121). ICxcept so far as otherwise agreed or determined, upon such admission or estabjisluncnt. the Constitution will apply to such new State. ALTER.VnOX OF the LlMITS OF STATES: FORM.ATION OF New States. — It has been seen that the preservation of 594 THE COMMONWEALTH OF AUSTRALIA. the territory of the federating Colonies; was a j)i'iiiiary condition of the union, and intercolonial suspicion led to this security being sought in very remarkable terms. Sec. 123 confers power upon the Parliament to increase, diminish or otherwise alter the limits of a State, but requires that for such alteration, as well as for the arrangements incident thereto, the consent shall be obtained not merely of the ordinary authority therein — the Parliament of the State — but of the electors of the State. The result is very curious. The State Parliament may without any consent of electors diminish its territory, for it is expressly authorized by sec. Ill to surrender any part of the State to the Common- wealth. The Commonwealth Parliament may immediately transfer the territory so surrendered to another State, but in order to make the transfer good, the electors as w^ell as the Parliament of the State receiving the accession of terri- tory must assent to the " increase " of " its limits." Again, by sec. 124 a State without any approval of electors may be cut asunder and made into two or more States, or may lose its separate existence altogether by union with another State — in either case no more than the concurrence of the State Parliament and the Commonwealth Parliament is required. Finally, sec. 128 secures that the safeguards of State territory shall not be removed by an ordinary exercise of the power of amending the Constitution, for in addition to the authority ordinarily required, an alteration of this class must be assented to by the electors of the States concerned. Tiiere were prior to the establishment of the Commonwealth a number of statutes in existence under the authority of which an alteration might be made in the boundaries of the Austra- lian Colonies. Thus, by 5 & 6 Vict. c. 76, sec. 51, the Crown was empowered by Letters Patent to define the limits of New South Wales north of the 26' of south latitude and to establish new Colonies there ; by 13 & 14 Vict. c. 59, sees. 30 and 34, 1 TERRITORIAL ALTERATIONS. 595 on tlie petition of New South Wales or Victoria, tlie Crown in Council may alter tlieir boundaries so as to transfer to one territory of the other; by 18 &5 19 Vict. c. 54, sec. 5, it is competent to New South Wales and Victoria by laws passed in concurrence with each other to define in any dif- ferent manner from that prescribed in the Act tlie boundary line of the two Colonies along the course of the Kiver Murray ; by 24 & 25 Vict. c. 44, sees. 2, 5 and 6, the Governors of contiguous Colonies on tlie Australian Con- tinent may, with the advice of their Executive Councils, determine or alter the common boundaries of such Colonies, and 071 the proclamation of the Crown such boundaries so agreed on, shall become the true boundaries of the Colonies ; and the Crown is empowered to attach to any other Australian Colony any territory wliich might have been detached from New South Wales under 5 & 6 Vict. c. 76. By the Western Australian Constitution Act 1890, sec. 6, the Crown has power to annex one portion of a Colony to another. Finally, the Colonial Boundaries Act 1890 authorized the Crown to alter the boundaries of any Colon}', provided that in the case of a self-governing colony this should not be done except on the petition of the Legislature of the Colony. In this wealtli of enactment there is room for some doubt as to the present position. The Colonial Boundaries Act is expressly dealt with by the Constitution Act, sec. viii., wliicli declares that the Act shall not apply to any State of the Commonwealth. For the rest, the Crown has exhausted its power under 5 (Jc G Vict. c. 7() by the establishment of Queensland and the annexation of territory' to Queensland, Soutli Australia and Western Australia, pjut the provisions of 13 & 14 Vict. c. 59, 18 & 1!> Vict. c. 54, the powers of Governors of contiguous colonies under 24 & 25 Vict. c. 596 THE COMMONWEALTH OF AUSTRALIA. 44, and the power of the Crown under the Western Austra- lian Constitution Act 1890, probably remained unimpaired to the establishment of the Commonwealth. The question is what effect that event had upon them. As already seen, there are numerous provisions in the Constitution itself touching the territorial limits of the States, and in face of such an enactment as that in sec. 123 it is difficult to suppose that the framers of the Constitution contemplated the existence of powers of altering the limits of the State outside the Constitution itself. In other words, creatine: a special power and creating it subject to restrictions, they intended it to be the sole power over the subject. This view is strengthened by a consideration of the nature of the new union. The territorial limits of the States are no longer the sole concern of the States whose limits are in ([uestion. The States are units of territory for many pur- poses of federal government, and any alteration of their limits not only disturbs electoral and jurisdictional arrange- ments within the Commonwealth, but might entirely alter the balance of political power in the Commonwealth. The case is less clear as to the power to determine an uncertain or imperfectly defined boundary under 24 k> 25 Vict. c. 44. The Constitution contains no provision for such a case ; the distinction between the determination of an existing boundary and the substitution of a new boundary is well recognized,^ and the same dangers do not belong to it. In 1908, Victoria and South Australia pro- posed to settle their difference in regard to their common boundarj', b}'' action under the Act. ^ Virginia v. Tennessee, (1S93) 14S U.S. o03. [597] CHAPTER 11. THE ALTERATION OF THE CONSTITUTION. The adjustment of constitutional powers between the Com- monwealth and States Governments is most obviously governed by the provisions concerning the alteration of the Constitution (sec. 128). The spirit of federalism requires that the federal pact shall not be at the mercy of the central government. Therefore in no federal system is the power of constitutional amendment left in the principal organ of that government — the federal legislature — save in the German Empire where however the predominant Chamber, the Bundrsrath, botli in its constitution and mode of action, is a perpetual memorial of confederatism and affords ample protection to State rights. There may be in the constitution itself an organization of the state behind the government or "the founders of the polity may havf drliherately omitted to provide any means for lawfully changing its basis." A signal instance of the latter course is to be found in the case of the Dominion of Canada, where the funda>nental ])rovisions of the British North America Act 1S()7 are alterable only by the Imperial Parliament. In Australia it was as necessary as elsewhere to estaljlish the federal system upon a basis which should not be dis- turbed by tlie legislature. But it was no less an object of 598 THE COMJMOX WEALTH OF AUSTRALIA. the founders of the Coinnionwealth to enlarge the power of self-government. Tlie existing colonies had the power of amending their own Constitutions ; the Commonwealth must have the power of amending the CommonAvealth Constitution. One of the most difficult tasks which the Convention had to perform, was to devise a mode of amending the Constitution whicli should make that instru- ment sufficiently rigid to protect the rights of the several States, to secure deliberation before action, and to discourage a " habit of mending " which mio-lit become a " habit of tinkering," but whicli should at the same time leave it flexible enough to recognize that development is as nnich a law of state life as existence, and to harmonize with the spirit of a people with wdiom "majority rule" is the first principle of government, and who have grown up under a political system which knows little more of the distinction between constituent and legislative power than the British Constitution itself. In no other matter was so much careful attention bestowed upon the methods of other Constitutions, and on the lessons to be gained from the experience of the United States and Switzerland. The compromise ultimately adopted is interesting both from what it adopts and from what it rejects of these models.^ The opening words of sec. 128, " This Constitution shall not be altered except in the following manner," make it 'Tlie American system of ainendnient is eulogised by Storj' (Commentaries on the Constitution, sees. 1826-1831), and Judge Cooley {Coimtittitional Law, p. 218) speaks of the " simple, easy and peaceful " method of modifying the provisions of the Constitution. On the other hand Professor Burgess (Political Science ami Conntitutional Law, vol. i., pp. 150-154) criticizes the Constitution for its over great rigidity. See also The Political Science Quarttrly, vol. 20, p. 20.S, '• The Rujid Constitution," by Mr. H. B. (now Mr. Justice) Higgins. Mr. Bryce discusses the Amending Power in The American Commomvealth, vol. i. c. xxxii. For the Swiss System and its working see Lowell's Goi-erumputs and Parties in Covtinental Europe, vol. 2. ALTERA'I'loX OF THE CONSTITUTION. 599 clear that there is no alternative method of amendment such as nii^ht otherwise perhaps have been considered to belong to the Parliament under the Colonial Laws Validity Act 1S65, and establish the provisions of the section as mandatory and not merely directory. The principles of Parliamentary government, of demo- cracy, and of federalism which run through the Constitution, are all recognized in sec. 128. The tradition of Par-liamen- tary Government and of ministerial responsibility, leaves the sole initiation of amendments with either House of the Parliament, and neither the States legislatures as in the United States, nor the electors as in Switzerland, have any direct means of setting the machinery to work. The pro- posed law for the alteration of the Constitution must be passed by an absolute majority of each House of Parliament, a provision connuon to the Constitution Acts of tlie several Colonies and distinjjuishino' measures of constitutional amendment in that one respect from ordinary legislation. In providing merel}' for an absolute majority throughout this clause and in sec. 57, the Constitution avoids the reproach of the " excessively artificial majorities " required for each stage in the amenut the description "Federal Commonwealth" is too vague, it is submitted, to be available as a limitation of power, and iinleed the Con- stitution itself, by sec. Ill and Chapter VI., provides means whereby the dual .sj'stem may l)e virtually extinguished by dealings between the Parliament and all tlif States without any resort to the provisions of sec. 12'S. No part of " The Constitution" is withdrawn from the power of the Connuonwealth. Indeed, there is no doubt that the whole Constitution could be repealed under sec. 12(S, 604 THE COMMONWEALTH OF AUSTRALIA. and that without any provision being made to substitute anything for it. Some years ago tlie Home Rule proposals of Mr. Gladstone gave great interest to the effect of surren- ders of power by a sovereign body.^ It seems an irresistible conclusion that, as Professor Dicey {Lww of tlte Constitution, 5th ed., p. 65), says — " The impossibility of placing a limit on the exercise of sovereignty does not in any way prohibit either logically or in matter of fact, the abdication of sovereignty." The special provision protecting the representation and the territory of the States presents some difficulties — might not the clause itself be repealed by the ordinary process of constitutional alteration, thus leaving the road open for a further alteration diminishing the representation or the territory ? To prevent such a course, from which — if we might adopt the principles applicable to the Articles of Companies and other Associations — the character of the Constitution as a compact would not protect it, are added the words " or in any other manner affecting the provisions of the Constitution relating thereto" the effect of which appears to be to put the clause itself under the protection which is afforded b}' requiring the assent of the electors of all the States affected. It is to be observed that the last clause of sec. 128 relates only to alterations of the Constitution. It is obvious that the " 231'oportionate representation" of States in one sen.se of the term will be affected by the operation of the Con- stitution itself. Thus, every admission of a new State with representatives in the Parliament, diminishes the proportion of the whole number of members returned by any particular State to Senate and House. Again, the natural increase of population will serve to increase the representation of some 'See articles by Sir William Ansou and Professor Dicey in the Laio Qnnrlcrly Rcvitir, vol. 2, and the speeches of Sir Henry James ami Mr. James Bryce, Han-Hard's Dtbatcx, vol. o05. ALTERATION OF THE CONSTITUTION. 005 States in the House and diniini.sli that of others, so tluit the " proportionate representation" of a State, wliether we reo-ard tliat term as describintj a rekition to the wliole number or a I'olation to tlie other States, will be affected. But such a result is in accordance with the Constitution, and it is only the mode by wliich this adjustment is effected (sec. 24) which is protected by the last clause of sec. 128. Similar observations apply to the provisions concerning the limits of States. We have seen that the Constitution confers several powers of affecting the States' limits. These require the assent or the action of the State Parliament, and in one case the electors of the State (sec. 123), and there was some apprehension that the integrity of States territory might be invaded by an alteration of the Constitution repealing the requirement of the consent of tlie State. Accordingly' it is provided that any such alteration of the Constitution is valid only with the consent of the State to be affected. In accordance with its power to prescribe the manner in which the vote of the electors is to be taken (sec. 128). Parliament passed the Referendum {Constitution Altera- tion) Act 190().^ The proposed law is submitted under a writ issued by the Governor-General addressed to the Chief Electoral Officer for the Commonwealth and tlie Common- wealth Electoral Officers for the several States. To the writ is to be attached a copy of the proposed law, or a statement setting out (a) the text of the proposed law ; {b) the text of the particular provisions (if any) of the Constitu- tion proposed to be textually alteiccl by tlic proposed law, and the textual alterations ^jroposed to be made therein (sec. ())■ Otherwise, the law governing the referendum is an adaptation of the law of Parliamentary elections. The 'No. 11 of 1906. All Act was passed in 190'J making some amendments in detail to bring the sciieme into accord wiih changes made by the Com- 7noH)veallh Electoral Act 1909. 606 THE COMMONWEALTH OF AUSTRALIA, interest of the States in tlie matter is recognized by the power of the Governor of a State to appoint a scrutineer at each place within the State where a scrutiny is conducted (sec. 18), and by liis power to request a re-count (sec. 23), and by the provision that a copy of tlie return for any State shall be sent to the Governor of the State (sec. 26 ). Tlie validity of any referendum, or of any return or state- ment, maj^ be disputed by the Commonwealth or any State on petition to the High Court (sec. 27), which shall hear and determine the petition (sec. 29). But no referendum and no return or statement shall be avoided on account of any delay in relation to the taking of the votes of the electors, or in relation to the making of any statement or return or on account of the absence or error of any officer which is not proved to have affected the result of the referendum (sec. 33). The alteration of the Constitution in 1906 in relation to the election of Senators (Constitution Alteration (Senate Elections) 1906) has been referred to.^ At the Conference of Ministers of the Commonwealth and the States held in Melbourne in August 1909, as has been seen in the consideration of the Financial Relations, agree- ments were arrived at for important alterations of the provisions of the Constitution in Finance. These agree- ments were embodied in two Bills or " proposed laws," one " To alter the provisions of the Constitution relating to the Public Debts of the States " by omitting from sec. 105 the words which limit the power of the Commonwealth to take over State debts to those debts "as existing at the establishment of the Commonwealth " ; the other " To alter the provisions of the Constitution relating to Finance " in the manner described in a preceding chapter.'-^ These proposed alterations will be submitted to the electors at the general election of 1910. i^Anie, p. ILS. -Part IX., Cap. III. [607] CHAPTER III. CONCLUSION. The Constitution of the Conniionwealth of Australia con- tains few evidences of that experimentalism for which the poHtics of the Colonies have become famous. Far from disdaininj;- precedent, the founders of tlie Constitution availed themselves to the full of the opportunities offered b}'' modern literature for a comparison of existing; Con- stitutions, and the Constitution throuoliout bears the im- press of this study. The absence of an}- obvious cause imperatively calling for immediate union, such as lias in every other instance of federal union determined action, allowed her a sintjular freedom of choice in workinu- from her models. The natural model for the union of a group of British Colonies would have been the Dominion of Canada, whose Constitution, in its preamble, recites the desire of the Pro- vinces to l)e united into one Dominicm " with a Constitution siiiiilai- ill principle to that of (Ih' United Kingdom." lUit the form of Canadian union was determined by special circumstances both internal and external, very diti'erent from any which existed in regard to Australia. In the first place the fundamental character of the Dominion — the possession of the residuary power by the Dominion Legis- lature and the subordination of the Provinces to the 608 THE COMMONWEALTH OF AUSTRALIA. > Dominion Government — was tlie natural outcome of the existing consolidation of the Provinces of Upper and Lower Canada. Just in tlie same way if the policy of " Home Rule all round " were applied in the United Kingdom, we should expect to find residuary power and some controlling power in the Imperial Parliament and the Imperial Govern- ment. In the second place, it must be remembered that the years 1864-1867, during which the Canadian Constitu- tion was taking shape, were years full of lessons from the neighboring union. The War of Secession had discredited the principles of disintegration upon which the Constitution of the United States was based, and the victorious States of the North were engaged in re-establishing their Constitu- tion upon a basis which greatly increased the central power, and might indeed, but for the restrictive interpretation of the Supreme Court, have given to Congress a general con- trolling power over the States. The histor}^ of the Constitution in the Courts since tlie establishment of the High Court of Australia in 1003 has served to emphasize the importance of the United States Constitution in everything that pertains to the federal nature of the Constitution. In affirmino- the doctrine of the immunity of instrumentalities, the High Court insisted on the regard that must be paid to a model wliich was notoriously before the minds of the framers of the Consti- tution, a model which embraced not merely the text of the American Constitution, but also the construction which it had received in the Courts.^ Less explicitly, but no less com- pletely in substance, the Court has accepted the American guide in its construction of tlui power of the Common- wealth Parliament to devise the means for the execution of I 'See ante, pp. 42-_> et seq. D'Emden v. Ptdder, 1 C.L.R. 91, 112; Muni- cipal Council of Sydney v. Commonwealth, 1 C.L.R. 208, 237, 240; Baxter V. Commissioner of taxation, 4 C.L.K. 1087. CONCLUSION. GOl) its powers/ in insisting on the regard to be paid to the reserved powers of the States,- and in interpreting the freedom of inter-State ti*ade.^ It is unnecessary to press further the existence of a debt wliich is recognized in every constitutional case which has come before the Hifj^h Court. Wlien we pass from the federal relation to consider matters which touch the organization of the Federal Government itself, as in the distribution of powers between the legisla- tive, executive, and judicial organs of government, the American model is less controllingr. The Constitution itself recognizes Cabinet government, which contradicts the complete separation of Executive and Legislature whicli exists in the United States, and this has, no doubt, in- fluenced a departure from American decisions here ;* while in regard to the judicial power of the Commonwealth there are so many differences, both in form and substance, that peculiar care has to be shown in the application of American authorities.^ But even where the Australian Constitution departs most from the American, that departure has gener- ally been conscious and advised, as an appreciation of the results of American experience, so that in interpretation we must not ignore but adaj^t. The Australian task, as com- pared witli the American, has thus been a light one, and the result, it must be confessed, detracts somewhat from the interest with which the student of government would have regarded a more free development of national growth. If the federation of Australia is the federation of the United States, and not that of Canada, tlie Parliamentary Government which England has given to her Colonies and to Europe is firmly rooted in the Constitution. That Cabinet ^4)1^6, pp. 277, 279. ■Ante, pp. .369 et seq. "Fox V. Bobbins, (1909) 8 C.L.K. 115. ••Cf. ante, p. 98. "Ante, pp. .31.3-4. GIO THE COMMONWEALTH OF AUSTRALIA. ( lovernmeiit prevents singular difficulties as applied to tlie federal system is obvious, and at the Convention of 1891 tliere were grave doubts whether it could be a durable institution (!ven in the several colonies. But between 1891 and the sitting of the final Convention, a great change came over the politics of Australia and New Zealand. Long tenure of office and stability of government had superseded the kaleidoscopic movements of a few years before ; and there was no more notable feature in which the Convention of 1897-8 differed from the Convention of 1891 than in its unquestioning acceptance of the Cabinet system. Since the establishment of the Commonwealth, Australia ha& again become familiar, in the Commonwealth Government as in most of the States Governments, with instability. To con- sider the causes of this is to probe deep into the political and social conditions of Australia; to suggest a remedy demands something of prophetic foresight, and neither can be attempted here. When a Chamber has a general confi- dence in a Ministry, but objects to a particular measure, or insists upon the acceptance of some measure to which the Ministrj^ objects, a way may be found, and in practice not infrequently is, by an increase in the number of " open questions." But experience shows that " open questions " mean a disorganized and ultimately a demoralized Chamber, the abdication of leadership means a loss of followers, and the road is open to intrigues which will soon displace the holders ©f office. If the Ministry resorts to dissolution, it is without a policy upon which it can claim the support of the people. " Open questions " of course offer no remedy when the Ministry is without the general confidence of the House, which may mean nothing more than that a temporary combination has been successfully engineered to " boost those chap.s." Elective Ministries, unless a.ssociated with a fixed tenure of office, to which there are obvious objections and CONCLUSION. 611 wliich legislative chambers are very unlikely to concede, do not appear to solve any difficulties, while they clearly raise some new ones. One other fact may be noted. It is often charged against Party Government that it deliVjerately excludes from office a large part of the ability of the House. Probably there is but a supei'ticial trutli in this. It may be doubted whether any other system would secure better talent for office, and the charge itself overlooks the fact that the Opposition is the complement to the Ministry in tlie .system, and must be efficientlj^ manned. But in a federal system, a Prime Minister is necessarily affected in his distribution of offices by the importance of recognizing the claims of States to representation and by the jealousy of any undue preponderance of a particular State. This con- sideration has had less weio-lit in Australia thanmiirht have been expected, but it has had some weight, and has been a source of some weakness to Ministries, both from within and without. This personal weakness is aggravated when a Ministry is formed exclusiveh- from a party whicli is in a minority in the House, or when a Ministry is formed l>y a fusion ol' vai'ious groups wliose claims have to be weighed against each other. From these causes the Commonwealth Ministries have suffered from the exclusion of some of the ablest of their supporters, whose counsel in Cabinet would have added to their collective wisdom and wliose voice in debate would have been an accession of strength. As it is, Ministries liavc been and are, fi-ecpiently the objects of criticism from th(> ((uartci- fi'om wliirli fi-itioism is always most effective. One cause of instability, the advent of the Labour Tarty as a " third party," has passed away, and with it the strategic advantage of that position. Tiie Labour Part\', whether in office or in opposition, is almost the mdy factor 612 THE COMMONWEALTH OF AUSTRALIA, in Australian political life which recalls some of the conditions upon which Party Government depends — per- manence, organization, discipline, and a common aim. In the importance of the Party Caucus as compared with the Parliamentary representatives in determining policy, the Australian Labour Party presents features which contrast sharply with the relations of Parliamentary leaders in England to Party organizations there. On the other hand the responsibility of office will tend to diminish the dependence of the Parliamentar}" representatives on the Caucus. But it is probably safe to say that if the Australian Labour Party re-invigorates the Party system in Australia it will also tend to modify that system. Tlie federalism of Australia is the federalism of the United States; her democracy is her own ; and the preva- lence of the democratic principle is unopposed by anything except the necessity for making a compromise with the principle of State right. The American Constitution was born in distrust. To possess power was to abuse it ; therefore in devising the organs of government the first object was less to secure their co-operation than to ensure that each might be a check upon the natural tendencies of the other. Large States, where the central power was far off, were more dangerous to liberty than small States, where popular con- trol was more readily exerted, therefore central power was to be no greater than was absolutely necessar}^ for security ao-ainst external attack and internal dissension. And the maxim " trust in the people " carried the Fathers of the Constitution but a little way on the democratic road. Direct participation by the people in the ordinary functions of central government seemed equally impracticable and mis- chievous. The people could at most be choosers, and even here they were to act at second-hand. There was to be a CONCLUSIOX. 613 college of electors who should exercise a free judo^iient in the choice of a President, the Senators were to be chosen by the legislatures of the States. 1'hus the most important offices in the union were to be filled without the pressure of popular clamour. The Constitution was accepted not by direct vote, but by State Conventions, and amendnjents were to be approved either by the States Legislatures or b}^ States Conventions. The Constitution of the Commonwealth of Australia bears every mark of confidence in the capacity of the people to undertake every function of government. In the constitu- tion of the Parliament, in the relation of the Houses, and in the amendment of the Constitution, the people play a direct part. There are no intermediaries in the formation of the Senate ; the electors are the arbiters between the Houses ; there are no Conventions of select men to approve altera- tions of the Constitution. The system governing the quali- fications of members and electors is dictated by a desire to rest those qualifications upon the Avidest possible basis. The attempt to combine the federal and the democratic principles in the constitution of the Senate will probably be found to add one more to the failures to solve the problem of the " Second Chamber." In the contests which preceded the adoption of the Constitution, the Senate was denounced as anti-democratic in the inequality of the individual whicli was involved in the equality of States. It was justitied in the necessity for representing the States " as such," to present a security for State rights and interests against the zeal of party majorities. But the Senate has entirely failed to represent the States as organijced political counnunities, it represents them merely as electoral districts. It is doubtful, however, whether any constitution of the Senate as a legislative chamber would have enabled it to perform exactly these delicate functions which were involved in the 614 THE COMMONWEALTH OF AUSTRALIA. rejjresentatioii of the States during the years of transition in which the Commonwealth was taking over functions from the States Governments, and in wliich there were complicated relations to be adjusted. Tliese functions were essentially those of the deliberative council rather than of the popular assembly, and it is not amiss to remember that this was the original view of the Senate in the United States, and remains tlie characteristic of the Bundesrath in Germany. Moreover, the main problems were essentially problems of finance, in which a Second Chamber is tradition- ally restricted wherever Cabinet Government exists. It is not surprising, then, that the exigencies of the situation forced frequent conferences between the States Governments and between the Commonwealth and the States Governments, and that the Inter-state Conference, in one form or another — for the mode of its constitution has been very varied — has passed from an event to an institution, which through its appointment of an " executive officer" simulates the organization of a permanent bod3^ Tlie Conference has indeed been denounced as " unconstitutional," but that at some stage has been the condition of most things in our evolutionary government. In the future it may be pointed to as evidence of the political capacity of our people to produce even out of a " rigid " Constitution the conventional institutions demanded by practical needs. In one notable matter the Australian Constitution differs markedly from that of the United States. In America the checks and balances devised by the Fathers of the Consti- tution, were deemed an insufficient restraint of power and were immediately supplemented by a comprehensive Bill of Rights, which placed the liberties of the citizen under the protection of the Constitution and secured them against any attack by the Federal Government. More remarkable still, in a federal constitution, there were a few provisions CONCLUSION. G15 protecting the rights of the citizens of the States against their own State Government. It need hardly be said that tliis spirit of distrust has grown ; that the States Constitu- tions put many and varied riglits of the citizen beyond the reach of the legiskxture, and that the amendments of the Federal Constitution which followed the War of Secession afford further security to individual right. From the Austra- lian Constitution such guarantees of individual right are con- spicuousl}' absent. When the Constitution left the Adelaide Convention it provided that no State should make any law prohibiting the free exercise of any religion (sec. 109 — Adelaide Draft) and that a State should not deny to any person within its jurisdiction the equal protection of its laws (sec. 40). These provisions however disappeared and with hardly an exception all restraints imposed by the Constitution upon Commonwealth Parliament or State may be referred to federal needs. Sec. 116, forbidding the Commonwealth Parliament to make laws touching religion, is an exception and a singular one, which finds a hardl}' sufficient explanation in the fears excited by the words in the preamble " humbly relying on the blessing of Almighty God." Again, sec. 128 departs from the customary' polic}- of treating the Parliament of a State as possessing all the powers of the State, by requiring that alterations of the limits of a State shall be approved by the electors thereof. Sec. 51 (1) has received from tin- majority of the High Court, an interpretation which pre- vents discrimination, not merely as bctweiMi States but as between localities in the same State.^ When it was found in the Convention that the section prescribing uniformity of Commonwealth taxation might be read to protect individuals or classes against discrimination care was taken to substitute words of geographical descrip- '77(6 Kiwi V. narn'v, (1908) 6 C.L.K. 41. See ante, j). .".17. G16 THE COMMONWEALTH OF AUSTRALIA. tion. The great underlying principle is that the riglits of individuals are sufficiently secured by ensuring as far as possible to each a share, and an equal share, in political power. Passing from the organization of government to the dis- tribution of functions, we find that in the number and character of the matters assigned to the Federal Parliament the Australian Constitution follows the Dominion of Canada rather than the United States. The fathers of the American Constitution, Mr. Brj^ce says, " had no wish to produce uniformity amongst the States in government or institutions and little care to protect the citizens against abuses of State power. Their chief aim was to secure the National Govern- ment against encroachments on the part of the States and to prevent causes of quarrel both between the central and State authorities and between the several States."^ But in the 19th century distance was constantly shrinking, and divergence of laws and institutions in two o-reat countries whose inhabitants have perpetual intercourse is to-day vastly more inconvenient than the divergences of custom in neighboring localities a few centuries ago. The century saw the growth of a whole body of law for the settlement of the confiict of laws and jurisdictions, but it is obviously simpler and more convenient to go to the root of the matter and establish an uniform law under a central ofovernment. Hence the great national states which the political move- ments of the century called into existence made " the law " to a great extent a national law. In Germany, there is a high degree of legal centralization ; the legislative power of the Empire extends over the whole domain of ordinaiy civil and criminal law, and this j)ower has recently given an uniform code of laws for the empire. Canada was quite alive to tlie defects of the United States sj'^stem in respect to the criminal and private law, and accordingly vested in ^Bryce, American. Commomcenllh, vol. i., p. 4'23. CONCLUSION. 617 the Dominion Parliament power over criminal law and pro- cedure, over the laws of marriage and divorce and over a large part of commercial law. Neither Canada nor Austi-alia has adopted the legal cen- tralization of Germany, save in the provision of a supreme appellate tribunal. But it is just in the sphere of the ordinary civil and criminal law that uniformity throughout Australia would be most desirable, and where there are few differences which requii'e special local treatment. The subject seems eminently one for the central authority. There would, indeed, be some difficulty in expressing the grant in terms which would be readily interpreted by English lawyers. The German is familiar with the scope and limitations of " burgerliches Recht " and " Strafrecht," the Frenchman, with " droit civil " and " droit penal." " Civil law " suggests the " peculiar lav/ " of " peculiar Courts and jurisdictions," though Mr. Jenks has recently done some- thing to give it a new currency by his Digest of English Civil Latv. But everything that belongs to the recogni- tion of a formal distinction between private law and public law is foreign to the English lawyer in spite of the terms of the Act of Union with Scotland. Still, Canada does not seem to have found especial difficulty in assigning definite limits to the " criminal law " (British North America Act (1867, sec 91 (27) ) ; and a way may be found for completing that uniformity of the ordinary law of man and man which the prevalence of the connnon law secures in general throughout Australia. Subject, as are most rules in the art of government, to many exceptions, it may be said that where the law operates directly upon the conduct of tlie citizen and is enforced solely or mainly tlirough proceedings in the Courts, it may most fitly be dealt witli by a central Legislature. Where, on the other hand, tlie matter is one in which adiniiiifitrdtion is the predominaiil activity of gov- 618 THE COMMONWEALTH OF AUSTRALIA. eminent, there must be some power of adaptation to local conditions. Australia possesses much political talent, both political and official, but it is hardly capable of administer- ing efficiently for a whole Continent, or of laying down the varying conditions of that administration through all the parts of Australia. In a federal system of government those matters in which the administrative predominates over the legislative element find their appropriate place in the State or Provincial Government. Mr. Bryce has pointed out that local self-government and federalism are distinct, and that it is perfectly possible to have a ver}^ high degree of centralization in a federal community.^ Australia is a signal illustration of this truth. Notwithstanding the extensive powers of the Common- wealth Government, the States are capable of exercising most of the powers of sovereignty, and these extensive powers are exercisable over vast areas inhabited in some cases by over a million of people, and capable in all cases of sustaining a population vastly greater. As Mr. Bryce observes, the sort of local interest which local self-govern- ment evokes, and the sort of control which a township can exercise is quite a ditterent thing from the interest men feel in the affairs of a large body like a State and the control exercisable over the affairs of a community with a million of people. In the Colonies of Australia such local government as there was, was established by the central authority and existed as a highl}- artificial and not very robust product. In addition to undertaking many of the functions which elsewhere beloncj to local o-overnments, the central government also concerned itself with works which in other lands fall to private hands. Thus there existed all the conditions of a highly centralized government, and the mere transfer of some of the functions of the several States ^ Bryce, Amei-icaii Commonwealth, vol. i., p. 466. CONCLUSION. 619 to a single authorit}' is, of course, not a step towards decentralization. For some time the States of Australia must be classed with centralized governments. One undoubted difficulty which faced the advocates for federation was the fact that it was not possible to appeal to the classes who ordinarily take the most continuous and active interest in Australian politics, by any direct prospect of progressive measures of social and industrial reform from a Federal Government, and the inclusion of " invalid and old-age pensions," and " conciliation and arbitration for the prevention and settlement of industrial disputes extend- iny beyond the limits of any one State," did not at the time assume at all the importance which these matters have since attained in Connnonwealth politics. The fact that the States retain the powers upon which experimental legislation is generally based, while the constitution oi tiie States Governments is less favourable than that of the Commonwealth Government to undertaking experiments, has led to the exercise of some ingenuity in applying "extensive interpretation" to Connnonwealth powers, and a reliance on "incidental" powers whicli a number of adverse decisions in the Hio-h Court have inolxiljU' now discouray;ed. In two matters of importance the arrangements of the Constitution have disclosed defects. The policy of tlie " new protection" demands that some security should be provided by law tliat the workers in protected industries shall share directl}' in the "benefits" or the "spoils" of fiscal polic}' — that protection should be conditional on the oljserx- ance of approved labour conditions. Tlic attempt to establish this by means of remissible excises, and its failure have been considered.^ The other defect is tlie consequence of the establisluncnt of Inter-State free trade, which renders State industrial leirislation hazardous 1)\- leason of the ^Ante, pp. 51 1 ei seq. 620 THE COMMONWEALTH OF AUSTRALIA. opening of the markets to goods produced in other States under less onerous conditions. The agreement between the Commonwealth and tlie States Governments in August, 1909, is intended to cover both defects.^ It affirms the importance of each State establishing tribunals for regulat- ing the conditions of labour uniform as far as practicable in jurisdiction and powers. This, in the main, is a call to the State of Tasmania to make some provision of the kind which is already made in the other States. It then proceeds to devise a scheme whereby, when conditions existing in one State lead to a competition which is unfair, the matter should be adjusted by Commonwealth authority ; and pro- vides that " when the Court of a State determines on the complaint of an industrial tribunal that ((() injurjMS caused to an industry carried on within that State; (b) such injury is caused by competition of persons engaged in the same industry in another adjoining State or States; (c) such injury is caused solely by the conditions of labour under which employes in the competing industry work ; (d) such conditions, whilst making allowa?nces for local circumstances, are unfair to the complaining State; (e) the industrial tribunals of the States concerned have failed, either jointly or hy separate action, to alter the conditions of labour which caused such injury : such Court may order that the conditions which are the cause of the unfair com- petition shall be referred to a Commonwealth tribunal for adjustment." To give effect to this agreement, the States Parliaments are to avail themselves of the power infer- entially conferred upon them by sec. 51 (xxxvii.) to refer matters to the Commonwealth Parliament, and as already stated, the Inter-State Commission Bill introduced in the latter part of the session of 1909 gave power to the Com- mission to determine the matter referred to it (clause 43). ^ Commonaealth Parliamentary Papers, 1909, No. .'iO. CONCLUSION. 021 Tl)e Bill was, however, ainoiio;st tlie measures abandoned by the close of the session. Tlie operation of the scheme, should it be enacted, depends, of course, upon the State Parliaments passing the necessary Acts of reference, and in some of the States Parliaments, Bills for the purpose were introduced before the close of 1900. This incident suggests a possible function of the Inter- State Conference in the future. Sec. 51 (xxxvii.) provides a means whereby the Connnonwealth powers may be aug- mented without any alteration of the Constitution, and the Conference is a natural and proper body for determining upon connnon action in the exercise of the power of refer- ence in cases which experience has proved to be suitable for control by the Connnonwealth. Whether the power will be extensively availed of will depend principally upon the establishment and maintenance of a good understanding between the Commonwealth and State authorities. It is the experience of federal government in the United States, in Germany and in Switzerland, that the national government tends to grow in power as compared with the State governments. In the United States, the development has been by way of judicial construction, rather than by formal amendment, a construction given under a deep responsibility which came from the knowledge that the decisions of the Court were, in face of the difficult}' of amending the Constitution, for all practical purposes final. Combining, in Marshall's piirase, the lawyer's rigour with the statesman's breadth of view, the Supreme Court for more than a centur\' has had to reconcile the needs of national strength with the claims of provincial autonomy and of individual right. For long the .steady course of judicial interpretation not only satisfied the American spirit, but shared the veneration which belonged to the Constitu- tion itself. There are indications that this satisfactioti is C22 THE COMMONWEALTH OF AUSTRALIA. passing away before the needs created by the expansion of the scale of business operations, wliicli have no regai'd to artificial State boundaries, and yet may not be " connnerce among the several States." In America, too, as elsewhere, the citadel of natural rights has been stormed, and the securities demanded by the citizen of the eighteenth century, against the impairment of his liberties are likely to be more and more regarded in the twentieth century as hindrances to social welfare. In these circumstances, the difficulty of altering the Constitution gives cause for anxiety, and not least to those vvlio fear that the demand for a new interpre- tation may lead the Courts to interpret opinion rather than law. In Australia, judicial construction has been important mainly as guarding the federal pact against invasion, whether by Commonwealth or State. It may probably be assumed that the pi*inciples of the immunity of instrument- alities, and of the consideration w^hich attaches to the reserved pow^ers of the States in determining the extent of federal powers, are finally established. But the dissentient Justices (Isaacs and Higgins JJ.) have intimated from the Bench^ that, sitting in the Full Court, they consider the latter principle as open to re-consideration at any time. It is, therefore, possible that a change in the constitution of tlie Bench might lead to revolutionary changes in the interj)retation of the law, which would give an impulse to federal action exceeding anything which has been seen in the United States. The Hio-h Court has not declared itself to be bound by its own decisions, and has, guardedly indeed, admitted that there may be cases in which the Court ought to review a previous decision. The passage ^During the argument in HudduH Parker v. Moorhead, (1909) \o A.L.K. 241. Tlie observations referred to are not reported. CONCLUSION. (J 2 3 from tlie judgment of the Chief Justice^ is especially worthy of note, because the opinion was delivered before the indication of the sharp differences of opinion disclosed in Tlie King v. Barger:^ "There must be some tinality in the decisions of this Court, especially on constitutional ([uestions, unless the decision in any particular case is to depend upon the accidental constitution of the Bench in that case. There may be cases in which the Court ought to review a previous decision, but a mere change in the constitution of the Bench ought not to be regarded as a sufficient reason for doino; so. The dancrer of such a doc- trine has been the subject of mucli connnent in the United States. In the present case, the only reason which we can admit for reviewing the previous decision of this Court is the fact that the Judicial Committee in the case of Webb v. Outtriin disagreed with it," '^Baxter v. Commis^ione.r'i of Taxation [X.S.W.), (1907) -4 C.L.Il., at p. 1,120. -6C.L.R. 41. APPENDIX. A. (1) Commonwealth of Australia Constitution Act. 63 & 64 VICT. CHAPTER 12. a.d. looo. An Act to constitute the Commonwealth of Austmlia. [mh July, 1900.] Whurkas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established : And wliereas it is ej^edient to provide for the admission into the Common- wealth of other Australasian Colonies and po.ssessions of the Queen : Be it therefore enacted by the Queen's INIost Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority ot the same, as follows :— I. This Act may be cited as the Cummonwcalth of Aus- short title, tralia Constitution Act. J 1. The provisions of this Act referring to the Queen Act to extend to . . . f'e li'ueen'g shall extend to Her JMajesty's Heirs and Successors in the successors. Sovereignty of the United Kingdom. Ri( G26 THE COMMONWEALTH OF AUSTRALIA. I'lociaination o HI. It sluill be lawful for the Queen, with tlie advice of Coiiinioiiwealth the Privy Council, to declare by Proclamation that, on and after a dity therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tas- mania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Westei-n Aus- tralia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the Proclamation, appoint a Governor-General for the Commonwealth (76). Commencement IV. The Commonwealth shall be established (76), and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several Colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution liad taken effect at the passing of this Act. Operation of V. This Act, and all laws made by the Parliament of the the CoMsticution iz-i •• iiiii-t and laws. Commonwealth under tlie Constitution, sliall be binding on tlie Courts, Judges, and people of every State, and of every part of the Commonwealth (67) (212) (242), notwithstanding anything in the laws of any State (407) ; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth (74) (80) (261) (281). Definitions. ^I- " The Commonwealth " (73) shall mean the Common- wealtli of Australia as established under this Act. " The States " shall mean such of the Colonies of Xew South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being- are parts of the Connnonwealth, and such Colonies or Ter- ritories as may be admitted into or established by the Com- CONSTITUTION ACT. 627 nionwealth as States ; and each of such parts of the Common- wealth shall be called "a .State." " Original States " shall mean such States as are parts of the Commonwealth at its establishment. VII. The Federal Council of Australasia Act, 1885, (76) is Hepeai of ^ ' Federal Council hf^reby repealed, but so as not to affect any laws passed by -^'"t- the Federal Council of Australasia and in force at the c^^co.^' '°'^' establishment of the Commonwealth. Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any Colony not being a State by the Parliament thereof. VIII. After the })assing of this Act the Colonial Application of ' Colonial Boundaries Act, 189."), (76) shall not apply to any Colony Boundaries Act. which becomes a State of the Commonwealth ; but the cf 34.'' "^ ' Commonwealtli shall be taken to be a self-governing Colony for the purposes of that Act (595). IX. Tlie Constitution (77) of the Commonwealth shall Constitution, be as follows : — THE CONSTITUTION. This Constitution is divided as follows : Chapter I. — The Parliament: Part I. — General : Tart II.— The Senate : Part III. — The House of Representatives : Part IV. — Both Houses of the Parliament : Pait V. — Powers of the Parliament : Chapter IT. — The E.xecutive Government : Chapter III. — The Judicature : Chapter 1 V. — Finance and Trade : Chapter V. — Tlie States : Chapter VI.— New States : Chapter VII. — Miscellaneous : Chapter VIII. — Alteration of tlie Constitution. The Schedule. 628 THE COMMOXWEALTH OF AUSTRALIA. ClIM'TKR I. TllEl'AHLIA.MKM'. Part 1. Gknkral. Lejjislative power. Governor- General. Salary of Governor- General. Provisions rekuiiiir to Governor- General. Sessions of I'arlianient. Prorogation and dissolution. CHAPTER J. THE PARLIAMENT. Part I. — General. 1. The legislative power of the Commonwealtli shall be vested in a Federal Parliament (105), which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called "The Parliament," or " Tlie Parliament of the Commonwealth." 2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exerei.se in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him (86) (107) (159 et seq.) (299) (.346). 3. There shall be payable to the Queen out of the Con- solidated Revenue Fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be Ten Thousand Pounds. The salary of a Governor-General shall not be altered during his continuance in office (160) (526). 5. Tlie provisions of this Constitution relating to the (governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth ; but no such person shall be entitled to receive any salary from the Commonwealth in respect of an}' other office during his administration of the Government of the Commonwealth (70) (160). 5. The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or othervvi.se, prorogue the Parliament, and may in like manner dissolve the House of Representatives. CONSTITUTION ACT. 629 After any general election the Parliament shall be sum- Suimnouinj,' •^ ° Parliament. moned to meet not later than thirty days after the day appointed for the return of the writs. Tlie Parliament shall be summoned to meet not later than Firsi session. six months after the establishment of the Commonwealth. 6. There shall be a session of the Parliament once at Yearly session of Parliament. least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session. P.\RT II. — The Skxatk. part ii. The Sesatk. 7. The Senate shall be composed of senators for each The senate. State, direct!}' chosen by the people (113) of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and dclcnniiiiiig the nnniber of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing tlie number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall liave less than six senators (HI). The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall he certified by the Governor to the Governor-Gieneral. 8. Tin' ([iialitication of electors of senators shall be in f.uiainicaiion of 11 1 1 • 1 • Mil • /^ • ■ clectoi'S. each State that winch is prescribed by tins Constitution, or by the Parliament, as tlic^ (lualification for electors of mem- bers of the House of Representatives ; but in the choosing of senators each elector shall vote only once (1 1;>) (1-4). 630 THE COMMONWEALTH Of AUSTRALIA. Metliod of election of senators. Times and places. 9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform (115) for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State. The Parliament of a State may make laws for deter- mining the times and places of elections of senators for the State. Application of State Laws. Failure to choose senators Isstie of writs. 10. Until the Parliament otherwise provides, but subject to tliis Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practic- able, apply to elections of senators for the State (116). 11. The Senate may proceed to the despatch of busines.s, notwithstanding the failure of any State to provide for its representation in the Senate. 12. The Governor of any State ma}' cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution (IIG) (404) (439). 13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolu- tion thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable ; and the places of the senators of the first three years c.A iofi(i, seo. -J. class shiill become vacant at the expiration of tJiH (hi)ii t/fmi, and the places of those of the second class at the expiration six years of th ' i sixth f / t aar , from the lieginning of their term of ser- vice : and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service. Rotation of senators. C.A. 1906, see. CONSTITUTION ACT. 631 The election to fill vacant places shall be made in t ft e witliiii one year before yom^ a i' iho ewp t radon of whioh the places are to become c.a. ioog, sec. 2 vacant. For the purposes of this section the term of service of a July senator shall be taken to begin on tlie first day of Jmmmuj c.a. i9oc,sec. 2. following the da}^ of his election, e.Kcept in the cases of the first election and of the election next after any dissolution of the Senate, wlien it shall be taken to begin on the first July day oiffmnmry preceding the day of his election (113). C.A. loOG.sec. 2. 14. WheneA'er the number of senators for a State is further provision for increased or diminished, the Parliament of the Common- 'otation. wealth ma}- make such provision for the vacating of the places of -senators for the State as it deems necessary to maintain regularity in the rotation (113). 15. If the place of a senator becomes vacant before the Casual vacancies. expiration of his term of service, the Houses of Parlia- ment of the State for which he was chosen shall, sittiner and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Hou.ses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive C(juncil thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election <>f a successor, whiehevor first happ(>ns (114) (156). * At the next general election of members of the House of Representatives, or at the next election of senatoi's for the State, whichever first happen.s, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term. 1 632 THE COMMONWEALTH OF AUSTRALIA. Qualifications senator. Election of President. Absence of President. Resiyiiation of senator. \'acancy by absence. A'acancy to be notified. 'i>uoruni. The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor- General. of 16. The qualifications of a senator shall be the same as those of a member of the House of Representatives (113) (127). 17. The Senate .shall, before proceeding to the despatch of any other busine.ss, choose a senator to be the President of the Senate ; and as often as tlie office of President becomes vacant the Senate sliall a^ain choose a senator to be the President. The President shall cea.se to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General (llfi). 18. Before or during any absence of the President, the Senate may choose a senator t<^ perform his duties in his absence. 19. A senator maj^ by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign liis place, which thereupon shall become vacant (116). 20. The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, with- out the permission of the Senate, fails to attend the Senate. "^l Whenever a vacancy happens in the Senate, the President, or if there is no President, or if the President is absent from the Commonwealth the Governor-General, shall notify tlie same to the Governor of the State in the representation of which the vacancy has happened (114). 22. Until the Parliament otherwise provides, the pre.seiice of at least one third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers (112). 4 CONSTITUTIOX ACT. 633 23. Questions arising in the Senate shall be determined votiiijf in Senate. i)y a majority of votes (112), and each senator shall have one vote. The President shall in all cases be entitled to a vote ; and when the votes are equal the question shall pass in tlie negative (116). Part III. — The House of IIepresentatives. I'AKriii. Hoisk ok liKI'RFSFX" 2i. The House of Representatives shall be composed of tatives." members directly chosen by the people of the Commonwealth Constitution of ^ ' House of (1 17), and the number of such members shall lie, as nearly as Hepresentatives. practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be detei-mined, whenever necessary, in the following manner: — i. A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, bv twice the number of the senators : ii. The number of members to be clioscn in each State shall be determined l)y dividing the number uf the people of the State, as sliown l)y the latest statistics of the Commonwealth, by the (luota; and if on such division there is a remainder greater than one-half of the quota, one more member shall l)e chosen in the State. But notwithstanding anything in this section, five mem- bers at least shall be chosen in each Original State (US). 25. Eor the purposes of the last section, if by the law ut' I'Dvisionas to any State all persons of anv race are disqualified from is chosen : 636 THE COMMONWEALTH OF AUSTRALIA. Election of Speaker. II. He must be a subject of the Queen, either natural- born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Common- wealth, or of a State (127). 35. The House of Representatives shall, before proceed- ing to the despatch of any other business, choose a memljer to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General (123). 36. Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence. 37. A member may by writing addressed to the Speakei-, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon sliall become vacant (123). 38. The place of a member shall become vacant if for two consecutive months of anv session of the Parliament he, without the permission of the House, fails to attend the House (123). 39. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to con- stitute a meeting of the House for the exercise of its powers (122). Votiiisfiu iO. Questions arising in the House of Representatives House of Representatives, shall be determined by a majority of votes other than that of the Speaker. Tlie Speaker shall not vote unless the num- bers are equal, and then he shall have a casting vote (124). Absence of Speaker. Resiynation of member. Vacancy by absence. Quorum. CONSTITUTION ACT. ' 637 Part IV. — Both Houses of the Parliament. partiv. Horn HoisKS of . tiikParliambnt. 41. JNo adult person who lia.s or ac(]Uiies a nglit to vote . , Riy:ht of electors at elections for the more numerous House of the Parliament ot states. of a State, shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth (124) (126). 42. Every senator and every member of the House of oatii or attirmation of Representative's shall before taking his seat make and iiiiej.'iance. subscribe before the Governor-General, or some person authorized by him, an oath or affirmation of allegiance in the form set fortii in the Schedule to this Constitution. 43. A member of either House of the Parliament shall .MtmLcr of one 1 • 1 I £ 1 • I c -ii.- 1 n House iiielif,nble be nicapable or being chosen or or sitting as a member of for other, the other House (127). 44. Any person who— Disqualification. I. Is under any acknowledgment of allegiance, obed- ience, or adherence to a foreign po\ver, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power : or II. Is attainted of treason, or has been Lonvicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Com- monwealth or of a State by imprisonment for one year or longer : or III. Is an undischarged ])ankrupt or insolvent : or IV. Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth : or V. Has any direct or indirect pecuniary interest in any agreement with the public service of tlio Common- wealth otherwise than as a member and in com- t 638 THE COMMONAVEALTH OF AUSTRALIA. nioii with the otlier membei-s of an incorporated company consisting of more than twenty-five persons : shall be incjipable of being chosen or of sitting as a senator or a member of the House of Representatives. But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, lialf-pay, or a pension by any person as an officer or member of the Queen's luivy or army, or to tlie receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth (116) (128) (168). Vacancy on ^5. If a senator or member of the House of Representa- happeniiii^ of ^ disiiualitication. tives - I. Becomes subject to any of tlie disabilities men- tioned in the last preceding section : or II. Takes the benefit, whether by assignment, com- position, or otherwise, of any law relating to bank- rupt or insolvent debtors : or III. Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State : his place shall thereupon become vacant (116) (128). Penally for 46. Until the Parliament otherwise provides, any person sittinir when disiiiuiiifieii. declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of One hundred pounds to any person Avho sues for it in any court of competent jurisdiction (128). Disputed 47. Until the Parliament otherwise provides, any ques- elecDions. . . , i-r- • c tion respecting the qualification or a senator or or a member of the House of Representatives, or respecting a vacancy in COXSTITUTIOX ACT. 639 eitlier House of tlie Parliament, and any question of a dis- puted election to either House, shall be determined by thr House in which the question arises (136) (316). 48. Until the Parliament otherwise provides, each senator Allowance to alio each member of the House of Representatives shall receive an allowance of Four hundred pounds a year, to be reckoned from the day on which he takes his seat (138) (026). 49. The powers, privileges, and immunities of the Senate Priviices .<:c. of and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the estab- lishment of the Commonwealth (138a) (310). 50. Each House of the Parliament may make rules and Rules and orders with j-espect to— °''''"'' I. The mode in which its powers, privileges, and inmiunities may be exercised and upheld : II. The order and conduct of its business and proceed- ings either .separately or joinily with the other Hou.se (138b). PaUT V. — PoWKKS OF Till:; pAKLlAMENT. p^^,, y „. riM T> 1- Powers OK THE 01. ihe farliament shall, subject to this Constitution, I'AKLi.vMENr. have power to make laws for the peace, order, and "ood '^■^K'^'i-'^ive *■ ' o ]>o,vfrs of the government of the Coiimionwealth with respect to — Pariiumenc. I. Trade and commerce with other countries, and among the States (-167) (505) (5-19 >it seq.) {bll et seq.) : II. Taxation (505 et seq.) ; but so as not to discriminate between States or parts of States (283) (444) (516 et seq.) : III. Bounties on the production or export of goods, but so that such bounties shall be uniform throuirhout the Commonwealth (283) (244) : 640 THE COMMONWEALTH OF AUSTRALIA. IV. Borrowing money on the public credit of the Com- monwealth (525) : V. Postal, telegraphic, telephonic, and other like ser- vices (448) : VI. The naval and military defence of the Common- wealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth (329) (448) : VII. Light houses, light-ships, beacons and buoys (449) : VI II. Astronomical and meteorological observations (450) : IX. Quarantine (449) : X. Fisheries in Australian waters heyond territorial limits (462) : XI. Census and statistics (450) : XII. Currency, coinage, and legal tender (449) : XIII. 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 (469) : XIV. Insurance, other than State insurance ; also State insurance extending beyond the limits of the State concerned (469) : XV. Weights and measures (450) : XVI. Bills of exchange and promissory notes (473) : XVII. Bankruptcy and insolvency (473) : XVIII. Copyriglits, patents of inventions and designs, and trade marks (459) : XIX. Naturalization and aliens (462) : XX. Foreign corporations, and trading or financial corporations formed within the limits of the Com- monwealth (469) : XXI. Marriage (474) : 11 CONSTITUTION ACT. 641 XXII. Di\(>ice iind matiimonial causes ; and in relation thereto, parental rights, ancl the custody and guardianship of infants (474) : XXIII. Invalid and old-age pensions (458) : XXIV. The service and execution throughout the Com- monwealth of tlii^ civil and criminal process and the judgments of the courts of the States (478) : XXV. The recognition throughout tiie Commonwealth of tli(> liiws, the public acts and records, and the judicial proceedings of the States (478) : XXVI. The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws (463) : XXVII. Immigration and emigration (465) : xxviii. The intlux of criminals (467) : XXIX. External affairs (.349) (460) : XXX. The relations of the Commonwealth with the islands of tlie Pacific (467) : XXXI. The acquisition of property on just terms from any State or per.son for any purpose in respect of which the Parliament has power to make laws (289) (487) (581) : XXXII. The control of lailways witli respect to transport for the naval and military purposes of the Com- monwealth (448) (578) : XXXIII. The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State (485) (578) : XXXIV. Railway construction and extension in any State with the consent of that State (485) (578) : XXXV. Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (451) (580) : SB 642 THE COiAlMONWEALTH OF AUSTRALIA. XXXVI. Matters in respect of wliicli tliis Coustitution makes provision until the Parliunient otherwise provides (488) : xxxvii. Matters referred to the Parliament of the Com- monwealth by the Parliament or Parliaments of any State or States, hut so that tlie law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law (4G5) (485) (6-il): xxxviii. The exercise v/ithin 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 Constitu- tion be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia (487) : xxxix. Matters incidental to the execution of any powei- vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal .Judicature, ov in any department or olficer of the Commonwealth (103) (199) (242) (274) (323) (446) (488) (525). Kxilusive 52. The Parliament shall, subject to this Constitution, i)o\vers of the Parliament. (510), have exclusive power (70) (274) (288) (330) (444) (528) to make laws for the peace, oi'der, and good govern- ment of the Commonwealth with respect to — I. The seat of Government of the Commonwealth, and all places acquired by the Commonwealth for public purposes (592) : II. Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth (448) : III. Other matters declared bv this Constitution to be within the exclusive power of the Parliament. COXSTITUTION ACT. (J43 53. Proposed laws (246) appropriating revenue or moneys, Powers of the Houses in or imposing taxation, shall not originate in the Senate. But 'espect of lejvishitioii. a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of lines or utlier pecuniary penalties, or for tlie demand or payment or appropriation of fees for licences, or fees for .services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or munevs for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of llepresentatives an}^ proposed law which the Senate may not amend, requesting, by mes.sage, the omission or amend- ment of any items or provisions therein. And the House of Representatives may, if it lliinks fit, make any of suoli omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws (140) (246). 5i. The proposed law wliirh appropriates revenue or Apiu-opriatiou moneys for the ordinary annual services of the Government sliall deal only with such appropriation (140) (246). 55. Laws imposing taxation shall deal o:dy with the T;.^ Bin. impcjsition of taxation, and any provision tliereiu dealing witli any otlici- matter sliall he of no effect (1 10) (240). Laws imposing taxation, except laws in)posing duties of customs or of excise, shall deal with one sul)ject of taxation only ; hut laws imposing duties of customs shall deal with duties of customs only, and laws imposin<'' duties of excise shall deal witii duties of excise only. 644 THE COMMONWEALTH OF AUSTRALIA. Recommeiiit- ation of money votes. Disagreement between the Houses. 66. A vute, resolution, or proposed law for the appro- priation of revenue or moneys shall not he passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in whicli the proposal originated (138d) (140) (246). 57. If the House of Representatives passes any pi-oposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law Avith or without any amend- ments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which tlie Hou.se of Repre- .sentatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simul- taneously. But such dissolution shall not take place within .six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amend- ments Avhich have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Repre- sentatives will not agree, the Governor-General may convene a joint sitting of the members of tlie Senate and of the House of Representatives. The members present at the joint .sitting maj'^ deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are iiffirmed by an absolute majority of the total number of the members of the Senate and House of Representatives .shall be taken to liave been carried, and CONSTITUTION ACT. 645 if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of tlie total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by botli Houses of tlie Parliament, and shall be presented to the Governor- General for the Queen's assent (155) (GOO). 58. When a proposed law passed by both Houses of the Uoyai assent to Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's naiDc, or that he withholds assent, or that lie reserves the law for the Queen's pleasure (108) (602). The Governor-General may return to ihe House in which Utrouuiaiida- . . , , tions l)y it originated any proposed law so presented to him, and (;<>venior- may transmit therewith any amendments which he may rec(mimend, and the Houses may deal wiiii the recom- mendation. 59. The Queen may disallow any law within one ycai' Disuiiowanpe by from the Governor-General's assent, and such disallow- ance on being made known l)y the Governor-General by .speech or message to each of the Houses of the Parlia- ment, or l)y Proclamation, shall annul the law from the day when the disallowance is so made known ( 110) (246) (602). 60. A pi-oposed law (247) reserved for the Queen's pleasure signification of ., . , «j>ueen's i>leasure sliall not liave anv lorce unless and until withm two years "n liiils ri'senod. from the day on which it was presented lothe Governor- General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, ov by Proclamation, that it has received the Queen's assent (602). CHAP'J'KK II. CuiTKRii. T 1 1 !•: EXEOUTI VK ( JO V EKN iM ENT. '^"M^t*''''" 61. ihe Executive power of the Commonwealth is vested Executive in the Queen and is exerciseable by tlu; Governor-General '"'"^'^' 646 THE COMMONWEALTH OF AUSTRALIA. Federal Executive C'ouiR-il. Provisions referriiit;' to Governor- General. Ministers of State. Ministers to sit in Parliament. Nunilier of Ministers. Salaries of Ministers. as the Queen'.s representative, and extends to the execution and maintenance of this Constitution, and of the hiws of the Commonwealth (79) (158) (296). 62. Tliere shall be a Federal Executive Council to advise the Governor-General in the government of the Common- wealtli, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure (165). 63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referrinir to the Governor-General acting with the advice of the Federal E.xecutive Council (166). 64. The Governor-General may appoint officers to admin- ister such departments of State of the Commonwealth as tlie Governor-General in Council may establish (103) (165). Such officers shall hold office dui'ing the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall l)e the Queen's Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives (168). 66. Until the Parliament otherwise provides, the Minis- ters of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs (168). 66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year (168). CONSTITUTION ACT. ^47 67. Until the Parliament otherwise provides, the appoint- Appointment of civil servants. meut and removal of all other officers of the Executive Government of tlie Commonwealth .shall be vested in the Governor-General in Council, unless the appointment is delepiated by the Governor-General in Council or by a law of the Connuonwealth to some other authority (158) (167). 68. The command in chief of the naval and military forces <'oiiniiaii(i ot •^ naval and of the Commonwealth is vested in the Governor-General as ""•■'"'■y foicf^. the Queen's repre.sentative (101) (176) (329). 69. On a date or dates to be proclaimed bv the Governor- Transfer of '■ •' <'ortain depart- General after the establishment of the Commonwealth the '"ents. following departments of the public service in eacli State shall become transferred to the Commoiiwoalth : — Posts, telegraphs, and telephones (444) : Naval and military defence (329) : Light-houses, light-ships, beacons, and l)Uoys (449) : Quarantine (449). But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment (44S). 70. In respect of matters which, under this Constitution, Certain powers of Governors lo pass to the Executive Government of the Commonwealth, vest in Governor- all powers and functions which at the establishment of the General. Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the .advice of his Executive Council, or in any autiiority of a Colony, shall vest in the Governor-General, or in the Govei-nor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires. CHAPTER HI. cn..-TKKin. THE JUDICATURE. thk jiT,.uAr.HK. 71. The judicial power (198) (303) of the Oommonwealtii .ludiciai power 1 • f-i 1 1 I /-< 1 11 » 1 "'"' ''nuns. shall be vested in a Federal hupreme Court, to be called the 648 THE COMMONWEALTH OF AUSTRALIA. ■ludires' appoint- ment, tenure, and remuneration. Appellate jurisdiction of High Court. High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other justices, not less than two, as the Parliament prescribes. 72. The Justices of the High Court and of the other courts created by the Par-liament — I. Shall be appointed ))y the Governor-General in Council (200) : II. Shall not be removed except by the Governor- General in Council, on ;in address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity (103) (200) (216n) : III. Shall receive such remuneration as the Parliament may fix ; but the remuneration shall not be diminisiied during their contuuiance in office (200). 73- The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals (221 et seq.) from all judgments, decrees, orders, and sentences — I. Of any Justice or Justices exercising the original jurisdiction of the High Court : II. Of any other federal court, or court exercising federal jurisdiction ; or of the Supreme Court of any State, or of any other Court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council : III. Of the Inter-State Commission, but as to questions of law only : and the judgment of the High Court in all such cases shall be final and conclusive. « CONSTITUTION ACT. C49 ■ But no exception or regulation prescribed by tlie Parlia- ment shall prevent the High Court from hearing and determining any appeal from the .Supreme Court of a State in any matter in which at the establishment of the Com- monwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall Ije applicable to appeals from them to the High Court. 74. No appeal (23-4 et seq.) shall be permitted to the Appeal to <^ueen in Queen in Council from a decision of the High Court upon council, any (juestion, liowsoever arising, as to tlie limits infer se of rlie Constitutional powers of the Commonwealth and those of any State or States, or as to tlio limits iyiter se of the Constitutional powers of any two or more States, unless the High Court sliall certify that the questioi? is one whicli ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for anv special reason the certificate should be granted, and there- upon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, tiiis Constitution .shall not impair any right which the Queen may be pleased to exercise by virtue of Her Pvoyal prerogative to grant special leave of Jippeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by theGovernor-Genei-al tor Hci- .\r:ijestys pleasure (1 11) (-15). 75. In all matters— ori.in.i juris- cliftion of II it'll I. Arising undci- any ti'eaty (489) : court. II. Affecting consuls or other representatives of other countries (41)0) : 650 THE COMMONWEALTH OF AUSTRALIA. III. In wliicli the Coinmoiiwealth, or a person suing or being sued on behalf of the Commonwealth, is a pai-ty (490) : IV. Between States, or between residents of different States, or between a State and a resident of anotlier State (491): V. In which a wiit of mandamus or prohibition or an injunclion is sought against an c)fficer of tlie Commonwealth (499) : the High Court shall have original jurisdiction (207) (211). Additional 76. The Parliament may make laws conferring original j'uSV.on. jurisdiction (199) (207) (211) (489) on the High Court in any matter — I. Arising under this Constitution, or involving its interpretation (oOl) : II. Arising under any laws made by the Parliament (501): III. Of adniiraltv and maiitime jurisdiction (503) : IV. Relating to the same subject-matter claimed under tiie laws of different States (416) (503). Power to fietiiie 77. With respect to any of the matters mentioned in the jmi-«lietiotl. i -r-. i • i i /i r\\i/-ir\r\ last two sections the Parliament may make laws (199),(20i)) — I. Defining the jurisdiction of any federal court other than the High Court (201)) : II. Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States (210) : in. Investing any Court of a State with federal jurisdiction (211) (^420). Prooeedintrs 78. The Parliament may make laws conferring rights to iiToiiweaithor proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power (403) (416) (497). a n CONSTITUTION ACT. 651 79. Tlie federa,! jurisdiction of any court may be exercised Xunibtiof " jiidjfC's. by such number of judges as tlie Parliament prescribes (199). 80. The trial on indictment of aiiv ofFtJuce airainst anv Triaiiiv imv. hiw of the Commonweakli shall be by jury, and every such trial shall bo held in the State where tiie offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes (199). CHAPTEll TV. cnA,TK>uv. FINANCE AND TllADE. -^"'t.-Iok'"'' 81. All i-evenues or moneys raised or received by the (.o„^o,]^,.,,— Executive Government of the Commonwealth shall form one '^'^*''""*^ ■■'"'"•■ Consolidated Revenue Fund (181), to be appropriated for the purposes of the Connnonwealth in the manner and subject to the charges and liabilities imposed by this Constitution (522). 82. The costs, charges, and expenses incident to the Kxpemliun'e c-liaiL;cfl collection, management, and receipt of the Consolidated tiRivon. Revenue Fund shall form the first charge thereon ; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Common- wealth (525). 83. No money shall be drawn from the Treasury of the mo,,,.^ to i>e Connnonwealth except under appropriation made by law j'i'|""i"'''^t'^' > (18:5) (522). Rut until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary f<,'r the maintenance of any department transferred to the Commonwealth and for the holdin" ot the first elections for the Parliamint. 84. When any department of the jmblic service of ;i Tni-isior of State becomes transferred to the Cominonu ;'alth, all ollicers of the department sliall become sulijeet to the control of the Executive Government of the Connnonwe.iltli. 652 THE COMMONWEALTH OF AUSTRALIA. TraDsfer of proi>eit\ of State. Any sucli officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to i"eceive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on tlie pension or retiring allowance, which would be permitted by the law of tlie State if his service with the Commonwealth were a continuation of his service with the State. Such pension oi- retiring allowance shall be paid to him by the Commonwealth ; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken t(j he that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Common- wealth, in the public service of a State, and who is, by consent of tlie Govermn- of the State with the advice of the Executive Counci] thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealtli and were I'etained in the service of the Commonwealth (.")2G). 85. Wiien any department of the public service of a State is transferred to tlie Commonwealth (289) — I. All property of tlie State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth ; but, in the case of the depai'tments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary. CONST [TFT I ox ACT. 653 II. J lie CuiiiinonweHllli may ucqiiii'e any pi'ojjertv of the State, of any kind used, but not exclusively used in connexion svitU the dcpai'traent ; the value thereof shall, if no agreement can be made, be ascertained in, as nearlv as inav be, the manner in which tlie value of land, or of an interest in land, taken by the State for public purposes is ascertained under tlie hiw of the State in force at the establishment of the Commonwealth : III. The Connnonwealth shall compensate the State for the value of any property passing to the Com- monwealtli under this section ; if no agreement can be made as to the mode of compensation, it, shall be determined under laws to be made by the Parliament (520) : IV. The Commonwealth shall, at the date of the trans- fer, assume the current obligations of the State in respect of the department transferred (5l'6). 86. On the establishment of the Connnonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth (514) (528). 87. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one- fourth shall be applied annually by the Coinmonwealth towards its expenditure. The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the pay- ment of interest on debts of the several States taken over by t'.ie Commonwealth (522) (533). [On the api)ro\;il by tlic electors, the Constitiitiuii AlteriitiDii l'.)0'.), see. 2, to be enacted as sec. STa of the Constitution, dechires tliat sec. 87 ceases to liave effect on .Time .SOth, lilli*, and makes substituted pro- vision. See below.] I 654 THE COM.MONWEALTH OF AUSTRALIA. Uniform duties 88. Uniform duties of customs shall be imposed within of customs. ■■■ two years after the establishment of the Commonwealth (404) (529). Payment to 89. Until tlie iiiiDosition of uniform duties of customs — states before '■ uniform duties. i. jhe Commonwealth shall credit to each State the revenues collected therein by the Commonwealth. II. The Commonwealth shall debit to each State — (a) the expenditure therein of the Common- wealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department tiansf erred from the State to the Commonwealth ; (b) the proportion of the State, according to the number of its people, in the other expen- diture of the Commonwealth. III. The Commonwealth shall pay to each State month by montli the balance (if any) in favour of the Stute (526) (532). ^\ Kxclusive power 90. On tiie imposition of uniform duties of customs the over customs, r- i t-> i- excise, and power of the Parliament to impose duties of customs and bounties. of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, One thousand eight hundred and ninety-eight, and not otherwise (514) (52!)). Exceptions as to 91. Nothing in this Constitution prohibits a State from bounties. granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Connnonwealth expressed COXSTITUTIOX ACT. 655 by resulutioii, any aid tu or bounty ou the pioductiou or export of goods. 92. On the imposition of uniform duties of customs, trade, oo^^|,\',oilw'eaith^ commerce, and intercourse among the States, whether by ^'^ '"^ *"'''^" means of internal carriage or ocean navigation, shall Ije absolutely free (330) (342) (393) (564 et seq.) (584). But notwithstanding anything in this Constitution, goods imported before tlie imposition of uniform duties of cu.stoms into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the impor- tation of such goods into the Commonwealth, less any difly paid in respect of the goods on their importation (531?i). 93. During the first five years aftt^r the imposition of '^y""'"^' *" '^ -^ ^ Scutes for h\e uniform duties of customs, and thereafter until tlie Parlia- >''^''''* ''^'Jp'' .„, ment otherwise provides : — 1. Th(! duties of customs chargeable on goods imported into a State and afterwards pa.ssing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been col- lected not in tiie former but in the latter State: 11. Subject to tlie last sulj-section, the Common wealth shall credit revenue, debit expenditure, ami pay balances lo the several States as pre.scribed for the period preceding the imposition of unitoim duties of customs (515) (52G) (532). 94. After live years from the inuiosition of uniform duties '^'''t'i'J' ' surplus but ion of of customs, the rarlianient may {)rovi(le, on such basis as it deems fair, for the monthly paynifnt ti)ru\;il nf tlu' clectoi-s, sees. 'S.\ :iiir^^"'''^"^ ^ rijfht to use lation of trade or commerce, abritlgii tiie rii^lit of a State '■'"^^^^■ or of tl:e residents therein to the reasonable use of the waters of rivers for conservation or irrigation (499) (563). 101. There shall be an Inter-State Commission, with intor-state Commission. such powers of adjudication and administration as the Parliament deems necessary for the execution and main- tenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder (573 et se.q.). 102. The Parliament may Ijy any law witli respect to Parliament may , J r 1 • 1 -1 " r. forbid trade or commerce torlnd, as to railways, an}' preference or preferences 1 .... , ^ , , , by state. disci-imination by any State, or by any authority constituted under a State, if such pi-eference or discrimination is undue and unreasonable, or unjust to any State ; due rcgai-d lieiiig liad to the financial responsibilities incurred bv any State in connexion w itli the construction and maintennice of its railways. But no preference or discrimination sliall, within the nieanini; of this sectinn, l)e laken to be unilue and uiueasonalile, or unjust to any State, unless so adjudged by the Inter-State Commission (578 et seq.). Tt 65S THE COMMONWEALTH OF AUSTRALIA. Conmiissioners' appoiiitnient, tenure, and remuneration. Savinij of certain rates. Takinjj over public debts of Stales. *\\ords to be omitted by Constitution Alteration (State Delits) 1909 on ap|)roval by electors. See below. 103. The members of tlie Inter-State Commission — I. Shall be appointed by the Governor-General in Council : II. Shall hold office for seven years, but may be removed within that time by tne Governor- General ill Ccnmcil, on an addi'ess from both Houses of the Parliament in the same session praying; for such lemoval on the ground of proved misbeh'-iviour or incapacity : III. Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office (576) : 104. Nothing in this Constitution shall render unlawful any rate for tiie carriage of goods upt)u a railway, the property of a State, if the rate is deemed by the Inter- State Conuuission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States (578 et acq.). 105. The Parliament may take over from the States tiunr public debts as exUiing at Olh rstabliahmeni of the Commoii- fceallJi,* oi' a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof ; and the States shall indem- nify the Commonwealth in respect; of the debts taken over, a7id thcre'fjfer lit", inlerest finyabU in. respect cf the debts shaU be dediicted and retained j'rom the poitluiis of the sia'piiis revenue of the C umniunwealtli payable to thf, several States, or if such surjjlns is insufficient, ur if tJtere is iio savjilus, then the dfjiciency or the whole amount shall be 2xiid by the several States. [By the Constitution Alteration (Finaiice) 1909, section 4, to be sub- mitted to tbe electors, the words in italics are to be omitted and the words therein pnnided inserted. See below.] CONSTITUTION ACT. 659 CHAPTER V. Chapter V. THE STATES. t„rStates. 106. The Constitution of each State of the Commonwealth savitifr of , , , 1 • i . 1 ■ /^ J • • . . 1 1 Constitutions, .shiill, subject to tins Constitution, continue as at Llie estab- lisliment of the CommoiiM'ealtli, or as at the admission or establishment of tlie State, as the case may be, until altered in accordance with the Constitution of the State (70) (320). 107. Every power of the Parliament V^tl.^t.'t'* " 94b. From and after the first dav of July, One thousand /vr CapUa " ' payment to nine hundred and ten, the Commonwealth shall pav to eacli states from 1st ' ' - .Inly, l'.)10. State, by mi)iithly insialnients, or applv to the payniciil of interest on debts f)f tli(> State taken over liv the Conimmi wealth, an annual sum amounting to Twenty-five shillings per iiead of the number of the people of the State as ascer- tained accordin yp_.,r.s from 1st thousand nine hundred and ten, pay to the State of "Western •'"b- i9i"- Australia, by montlily instalments, an annual sum which in the first year shall be Two liuiMltcd and fiftv thousand pounds and in each subsecpient year shall be progressive! v diminished by the sum of Ten thousand pounds. €68 THE COMMONWEALTH OF AUSTRALIA. " (2.) One-half of the amount of the payments so made shall be debited to all the States (including the State of Western Australia) in proportion to the number of their people as ascertained according to the laws of the Common- wealth, and any sum so debited to a State may be deducted by the Commonwealth from uny amounts payable to the State under the last preceding section or this section." Public debts of i. Section one hundred and five of the Constitution is states. altered — (a) by omitting the words — " and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Com- monwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States ; " and (b) b}^ adding at the end thereof the following para- graph :— " The interest and charges payable by the Com- monwealtli, in respect of the debts of a State taken over, may be deducted and retained from any moneys payable to the State under this Constitu- tion, and shall, to the extent to which they are not so deducted and retained, be paid by the State to the Commonwealth." B. Commonwealth Documents. (1) Proclamation of the Commonwealth of Aus- tralia. BY THE QUEEN/ A PROCLAMATION. ViOTOKIA R. WiLKRKAS by an Act of Parliament passed in the sixty-third and sixty-fourth years of Our reign, intituled " An Act to constitute the Commonwealth of Australia," it is enacted that it shall be lawful for the Queen, with the advice of the Privy Council, to declare by Proclaniaticn that on and after a day therein appointed, not being later than one year after the passing of this Act, the people of Nnv South Wa^^-s, Victoria, South Australia, Queensland, Tasmania, and also, if Her INIajesty is satisfied that the people of Wester}!. Aiislralia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under tlie name of the Commonwealth of Australia : And whereas we are satisfied that the people of Western Atistralia have agreed thereto accordingly : We, therefore, liy and with the advice of our Privy Council, have thought fit to issue this Our ]^)yal Pro- clamation, and wc do hereby declare thai <>n and after the ^ConiiiionweaUh of AustiaHa (iazelte, No. 1, .huuKiry 1st, 1901. 670 THE COMMONWEALTH OF AUSTRALIA. iirst day of Jauuai y One thousand nine liundred and one the people of Kfiv Son/h Wnlfi.'^, Victoria, Sauth Australia, QueenslcDid, TnKiiuxiiia, and We^tevii Australia sliall be united in a Federal Commonwealth under the name of The Commonwealth of Australia. Given at Oui- Court at Balmoral this seventeenth dav of September in the year of Our Lord One thousand nine hundred and in the sixtv-fourth vear of Our Kei^n. God savk thk Queen ! (2) Letters Patent passed under the Great Seal of the United Kingdom, constituting the Office of Governor-General and Commander- in-Chief of the Commonwealth of Australia.' Lftters Faunt, VICTORIA, bv the Grace of God of the United Kinirdom of O^iow-r, hm. Great Britain and Ireland Queen, Defender of the Faith, Erapi'ess of India: To all to whom these Presents shall come, Greeting : Preamble. TTTHEREAS, by an Act of Parliament passeJ on the Acrer.'v; (i4 CTct. Ninth day of July, 1900, in the Sixty-fourth year Prodaniation of of Our Reign, intituled "An Act to constitute the Common- 17th Seiiteniber, i i /> a i- » • • i i • i n i i /• i ]i)oo. wealtli or Australia, it is enacted that "it siiall be lawful " for the Queen, with the advice of the Privy Council, to "declare by Proclamation that, on and after a day therein " appointed, not being later than one year after the passing " of this Act, the people of New South Wales, Victoria, "South Australia, Queensland, and Tasmania, and also, if " Her MHJesty is satisfied that the people of Western " Australia have agreed thereto, of Western Australia, "shall be united in a Federal Commonwealth under the " name of the Commonwealth of Australia. But tlie Queen "may, at any time after Proclamation, appoint a Governor- " General for the Commonwealth : " ■Commonwealth of Australia Gazette, No. ], January 1st, 1901. COMMONWEALTH DOCUMENTS. 671 And wlierea.s we tlid on the Sevent' eiilh day of September One thousand nine hundred, \>y and with tlie advice of Our Privy Council, declare In' Proclamation that, on and after the First day of January One thousand nine hundred and one, the people of New South Wales, Victoria, South Aus- tialia, Queensland, and Tasmania, and also Western Aus- tralia, should be unit.ed in a Federal Cdnnnonwealth under the name of the Connnonwealth of Australia : And whereas by the said I'ecited Act certain poweis, functions, and authorities were declared to l)e vested in the Governor- Genei-al : And whereas We are desirous of inakin!^ eflectual and permanent provision for the Office of Governor-General and Connnander-in-Chief in and over Our said Comujon- wealth of Australia, without making;- new Letters Patent on each demise of the said ollice : Now know ye tliat AVe have thought fit to constitute, order, and declare, and do by these presents constitute, order, and declare, that there shall be a Governor-General and ( 'onnninder-in-Chief (here- otticeof fioveriior- mafter called the Governor-Genei-al) in and over Our •'eneiaiaMd CoimnaiKier-in- Counuonwealth of Australia (hereinafter called Our said t'l'ef ooiistituted. Commonwealth), and that the person who shall fill the said OlHce of Governor-General shall be from time to time appointed by Commissifm under our S'u^n .Manual and Signet. And We do hereby authorize and command Our said Governor-General to do and execute, in due manner, all things that shall belong to his said command, and to the trust We have reposed in him, according to the several Oovernor- .... , 11, lJeiieriirsi>owers powers and authorities granted or appointed hnn by virtue ami autliohties. of " The Connnonwealth of Australia Constitution Act 1900," and of these present Letters P,itent and of such Commission as may be issued to him under C)ur Sign Manual and Signet, and according to such Tnstructions as niav from time to time be given to liini, uihltr ()ur Sign Alannal and Signi't, or by Our Order in Our I'livv Council, or liv Us through one of oui' Principal Secretaries of State, and to such laws as shall hei-eafter Ix; in force in Our said Commonwealth. 67 THE COMMONWEALTH OF AUSTRALIA. Great Heal. Appointment of Jiiclye, Justices, &c. Suspension ov removal from ottiee. Summonini;-, proroi,'uin^- or dissolvidi;- the C'ommoMwealtli Parliament. II. Tliere sliall be a Great Seal oi and foi' Our said Connnonw ealth wbit-li (Jur said Governor-General shall keep and use for sealing all things whatsoever that shall pass the said Great Seal. Provided that until a Great Seal shall be provided, the Pi'ivate Seal of our said Governor- General may be used as the Great Seal of the Common- wealth of Australia. III. The Governoi-General may constitute and appoint, in Our name and on Our behalf, all such Judoes, Cominis- sioners, Justices of the Peace, and other necessary Officers and Ministers of Our said Commonwealth, as may be law- fully constituted or appointed by Us. IV. The Governor-General, so far as We Ourselves law- fullv may, upon suthcient cause to him appearing, may remove from his office, or suspend from the exercise of the same, any person exercising any office of Our said Common- wealth, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us in Our name or under Our authority. V'. The Governor-General ma}^ on Our behalf exercise all powers under the Commonwealth of Australia Constitution Act 1900, or otherwise in respect of the summoning, pro- roguing, or dissolving the Parliament of Our said Common- wealth. YI. And whereas by " The Commonwealth of Australia Constitution Act 1900 " it is amongst other things enacted that We may authorise the Governor-General to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part of Our Commonwealth, and in that capacity to exerci.se, during the pleasure of the Governor-General, such powers and functions of the said Gt)vernor-General as he thinks fit to assign to such Deputy or Deputies, subject to any limitations expressed or direc- tions given by Us : Now We do hereby authorise and empower Our said Governor-General, subject to such limita- COMMONWEALTH DOCUMENTS. 673 lions and directions as afor'esaid, to appoint any person or Power to ^ -^ ./ X appoint persons, jointly or severally, to be his Deputy or Deputies i>epuiies. within any part of Our said Commonwealth of Australia, and in tliat capacity to exercise, during his pleasure, such of his powei's and functions as he may deem it necessary or expedient to assign to him or them : Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise by the Governor-General himself of any power or function. VII. And We do hereby declare Our pleasui-e to be that, succession to the ■^ ■"■ Government. in the event of the death, incapacity, removal, or absence of Our said Governor-General out of Our said Commonwealth, all and every the powers and authorities lierein granted to him shall, until Our furthei- pleasure is signitied tlierein, be vested in such person as niay be appointed by us under Our Sign Manual and Signet to be Our Ijieutenant-Governor of Our said Commonwealth ; or if there sliall be no such Lieutenant-Governor in Our said Commonwealth, then in such person or persons as nuiy be appointed by Us under Our Sign Manual and Signet to administer the Government of tlie -same. No such powers or authorities shall vest in such Lieutenant-Governor, or such other person or persons, Pw^so." ouths ' '■ "^ ' of otfice to be until he or they shall have taken the oaths appointed to be ^''•^^'i- taken by the Governor-General of Our said Commonwealth, and in the manner provided by the Instructions accompany- ing these Our Letters Patent. VIII. And We do hereby require and conunand all Our Offlceisand ■' others to obey Officers and Ministers, ('ivil and Military, and all other the an.l assist the " Governor- inhabitants of Our said Connnonwealth, to be obedient, <^e>»-'al. aiding, and assisting unto Our said Governor General, or, in the event of his death, incapacity, or absence, to such person or persons as may, from time to time, under the provisions of these (.)ur Jjellcrs Patent, administer the Government of Our said Commonwealth. Vv G74 THE COMMONWEALTH OF AUSTRALIA. Power reserved JX. And We do hereby reserve to Ourselves, Our heirs to Her .Majesty •' to revoke, alter, ;;i^,l successors, full power and authority from time to time or amena the •■• " present Letters ^^ revoke, alter, or amend these Our Letters Patent as to Us or them shall seem meet. Publication of Letters Patent. X. And we do further direct and enjoin that these Our Letters Patent shall be read and proclaimed at such place or places as Our said Govei-nor-General shall think lit within Our said Connnonwealth of Australia. I u witness whereof We have caused these Our Letters to be made Patent. Witness Ourself at Westminster, the Twenty- ninth day of October, in the Sixty fourlh Year of Our Reign. By Warrant under the Queen's Sign Manual, MUIR MACKENZIE. Li:ttkus Patent constituting the Office of Governor- Gkneral and Commander-in-Chit-f of the Commonwealth op Australia. DaUd Wth Octohfr -^91)0. (3) Instructions passed under the Royal Sign Manual and Signet to the Governor-General and Commander-in-Chief of the Common- wealth of Australia.' ViCTORIA 11. I. Instructions to Our Governor-General and Commander-in- Chief in and over our Commonwealth of Austi-alia, or ill his absence, t"^* our Lieutenant-Governor or the Officer for the time being administering the Govern- ment of our said Commonwealth. Given at Our Court at Saint James's, this Twenty- ninth day of October, 1900, in the Sixty-fourth year of Our Reign. '^ Commonu-ealtU Parliamentary Papers 1901, A2. COMMONWEALTH JJOCUMENTS. 675 WHEREAS by certain Letters Patent bearing even I'mambie. date lierewith, We have constituted, ordered, and declared that there sliall be a Governor-General and Commander-in-Chief (therein and hereinafter called the Governor-General), in and over Our CoiMnionwealth of Australia (therein and hereinafter called Our said Common- wealth). And We have thereby authoi-ized and com- J^«''^'''«'*' betters •' Patent nianded our said Governor-General to do and execute in '''il"*^''^"'''"^ "^^^ office of du(^ matnifr all thiiiirs th^it shall belong to his said com- Ji^.^^f ''","''' mand, and to the trust We have reposed in him, according to the sf'veral powers and authorities granted or appointed him hy virtue of the said Letters Patent and of such Com- mission as may he issued to him under Our Sign ^Manual and Signet, and according to such Instructions as may from time to time be given to him, under our Sign ^Vanual and Signet, or by Our Order in Our Privy Council, or by Us through One of Our Principal Secretaries of State, and to such laws as shall hereafter be- in force in Our said Commonwealth. Now, therefore, We do, by these Our Instructions under Our Sign Manual and Signet, declare our pleasure to be as follows : — I. Our first appointed Goveinor-General shall, with all ''"'''''■''»i'0" of first Governor i)oiiitiiunt of uri 1.- 1 iii ""■ 'ii^hl Hon. Manual ami .Signet, ajijxmil vnu, the sanl John the Karl of » 1 • T • T< 1 r- TT 11-^ )Io|)etOUll. P.C. Adrian Liouis, Earl or Hopetoun, to i)e, during Our pleasure, k.t., o.c.m.g., (i.('.\'.0. , as Our Governor-General and Connnander-in-Chief in and over Ooviinoi- tJuntTiil. 'Commonwealth of Australia (iazette No. 1, Jaiiuary 1st, 1901. I 682 THE COMMONWEALTH OB^ AUSTRALIA. Our Coniinonwealth of Australia, witli all the powers, rights, privileges, and advantages to the said Office belonging or appertaining. Recites Letters U. And We do hereby authorize, empower, and Patent conati- •' ' i ' tutiiiif the Office command vou to exercise and perform all and singular the ot Governor- . r o General. powers and directions contained in Our Letters Patent under the Great Seal of Our United Kingdom of Great Britain and Jreland, bearing date at Westminster the Twenty-ninth day of October, 1900, constituting the said Office of Governor-General and Commander-in-Chief, or in anv other Our Letters Patent adding to, amending or substituted for the same and according to such Orders and Instructions as you may receive from L^s. otiiners. &e., to III. And AVe do herebv command all and sin^'ular oliev tlie o' Governor- Our Officers, Ministers, and lovinij subiects in Our said General. ' ' -'J Commonwealth, and all others whom it may concern, to take due notice hereof, and to give their ready obedience accordingly. Given at Our Court at Saint James's this Twenty-ninth day of October, 1900, in the Sixty-fourth year of Our Reign. By Her Majesty's Command, J. CHAMBERLAIN. Commission appointing The Right Honorable the Earl ofHopetoun, P.C, K.T., G.C.M.G., G.C.V.O., to be Governor-General and Commander-in-Chief of the Common- wealth OF Australia. c. State Documents, [The following instruments were issued in relation to the State of Victoria. Instruments similar to 1 and 2 were issued in the case of each of tlie other States.] VICTORIA. > (1) Letters Patent passed under the Great Seal of betters Patent, dated 29th the United Kingdom constituting the Office of <»( tober, looo. Governor of the State of Victoria and its Dependencies, in the Commonwealth of Aus- tralia. Victoria, by the Grace of God of the United Kingdom of Great Brit;iiii and Ireland Queen, I)efender of the Faith, Empres.s of India : To all lo whom these presents shall come, Greeting. TTJHEREAS, by certain Letters Patent, under the pieamWe. VV Great Seal of Our United Kingdom of Great [i^^J^^f^^'j^jf^^^^^ Britain and Irehind, l)earing date af Westminster the ''^■'"•"^'•y' i«"9- Twenty-first day of Fei)ruary 1879, We did constitute the Office of Governor and Commander-in-Chief in ;ind uvi-r Our Colon}' of Victoiia as therein described, and its Dependen- ^ Victoria Government Gazette, January 2Qd, 1901. 684 THE COMMONWEALTH OF AUSTRALIA, f Recites Imperial Act 03 &{U Vict., c. 12, Proclama- tion of 17lh September, 19(Xi, and Letters Patent of iOtli October, 19(1(1. Revocation of Letters Patent of 21st Fet)ruarv 1879. Office of Oovernor constituted. Boundaries. Governor's power.1 and authorities. cies : And whereas, in virtue of the provisions of the Commonwealth of Australia Constitution Act, 1900, and of Our Proclamation issued thereunder, by and with the advice of Our Privy Council on the Seventeenth day of September, 1900, We have by certain Letters Patent under the said Great Seal of Our United Kingdom of Great Britain and Ireland, bearing even date herewith, made provision for the Office of Governor-General and Com- mander-in-Chief in and over Our Commonwealth of Aus- tralia : And whereas it has become necessary to make permanent provision for the Office of Governor in and over Our State of Victoria and its Dependencies, in the Com- monwealth of Australia, without making new Letters Patent on each demise of the said Office. Now know ye that We do by these presents revoke and determine the said first-recited Letters Patent of the Twenty-first day of February 1879, and everything therein contained, from and after the proclamation of these Our Letters Patent as hereinafter provided ; And further know ye that We do by these presents constitute, order, and declare that there shall l)e a Governor in and over Our State of Victoria (comprising the territories bounded on the west by Our State of South Australia, on the south by the sea, and on the east and north by a straight line drawn from Cape Howe to the nearest source of the River Murray, and thence by the course of that river to the Eastern Boundary of Our State of South Australia) and its Dependencies, in the Common- wealth of Australia (which said State of Victoria and its Dependencies are hereinafter called the State), and that appointments to the said Office shall be made by Commission under our Sign Manual and Signet. II. We do hereby authorize, em.power, and command Our said Governor to do and execute all things that belong to his said Office, according to the tenor of these Our Letters Patent and of such Commission as may be issued STATE JIOCUMENTS. 685 to liini under Oiif Sieputy i Council. such others, from time to time, as he sliall hnd convenient for Our service to impart to them. IV. The Governor shall attend and preside at the meet- ings of the E.\ecutive Council, unless prevented by some necessary or reasonable cause, arjd in his absence such member as may be appointed by him in that behalf, or in ^Senior Me:nber the absence of such member the senior member of the to preside in tlie absence of tiie Executive Council actually present, shall preside; the Governor and "^ ^ ^ President. seniority of the members of the said Council being regulated according to the order of their respective appoint- ments as members thereof. Governor to preside. Governor to appoint a President. i Seniority of Members. (,'uorum. V. The Executive Council shall not proceed to the despatch of business unless duly summoned by authority of the Governor nor unless two members at the least STATE DOCUMENTS. 691 (exclusive of the Governor or of the member presiding) be present and assisting throughout the whole of the meetings at which any such business sluill be despatched. VJ. In t!ie execution of the powers and authorities f"0^e''"or to take advice vested in him, the Governor shall be "uided by the advice of Kxecutive " •' Council. of the Executive Council, but if in anv case he sliall see sufficient cause to dissent from the opinion of the said Council, he mny act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to Us without delay, with the reasons for his so acting. In any such case it siiall be competent to any Member of the said Council to require that there be recorded upon the INIinutes of the Council the grounds of anv advice or opinion that he may give upon the question. VII. The Governor shall not, except in the cases here- nescription of . , • /- T-.-11 p c l*i lis not to be under mentioned, assent in Our name to any Bill of any of absented to, the following classes : — 1. Any Bill for the divorce of persons joined together in holy matrimony. 2. Any Bill whereby any grant of land or money or other donation or gratuity may be made to himself. 3. An}' Bill affecting the currency of the State. 4. Any Bill the provisions of which shall appear incon- sistent with obligations imposed upon Us by Treaty. 5. Any Bill of an extraordinary nature and importance, whereby Our prerogative or the lights and property of Our suV)jects not residing in the State, or the trade and sliipping of the United Kingdom and its Dependencies, may be pre- judiced. 6. Any Bill containing provisions to which Our assent has been once refused, or which have been disallowed by Us ; 692 THE COMMONWEALTH OF AUSTRALIA. Powers in Unless lie shall have previously obtained Our Instructions ur.yent cases. upon such Bill through one of Our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification in the State of Our pleasure thereupon, or unless the Governor shall have satisfied himself tliat an urgent necessity exists requiring that such Bill be brought into immediate opei'ation, in which case he is authorized to assent in Our name to such Bill, unless the same shall be repugnant to the law of England, or inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto. Regulation of VIII. The Governor shall not pardon or reprieve any power of pardon. ^ , . , „ , ... ., , ., i . oflender without first receiving in capital cases the advice of the Executive Council, and in other cases the advice of one, at least, of his Ministers ; and in any case in which such pardon or repiieve might directly affect the interests of Our Empire, or of any country or place beyond the jurisdiction of the Government of the State, tlie Governor shall, before decidino; as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. Judses, &c., to IX. All Commissions granted by the Governor to any dudng pleasure, peisons to be Judges, Justices of the Peace, or other ofiicers shall, unless otherwise provided l)y law, be granted during pleasure only. Governor's X. The Governor shall not quit the State without having Temporary ^^'^^ obtained leave from Us for so doing under Our leave of absence, yj^^^ Manual and Signet, or through one of our Principal Secretaries of State, except for the purpose of visiting the Governor of any neighbouring State or the Governoi- Genetal, for periods not exceeding one month at any one time, nor exceeding in the aggregate one month for every year's service in the State. STATE DOCU^FEXTS. 693 XL The leniporarv .absence of the Governor for any Governors ^ *' ^ absence and period not exceediiiii; one month shall not, if he liave 'IfP^riure from previously informed the Executive Council, in writing, of '"^terpretation liis intended absence, and if he have duly appointed a Deputy in accordance with Our said Letters Patent, be deemed a departure from the State within the meaning of the said Letters Patent. V.R.I. (3) Cornmission passed under the Royal Sign Manual and Signet, appointing Sir John Mad- den, K.C.M.G., Chief Justice of Victoria, to be Lieutenant-Governor of the State of Victoria and its Dependencies, in the Commonwealth of Australia.^ ViCTOKIA R, Dated 29th October, 1900. VicTOKiA, by die Grace of God of the United Kingdom of Great Britain and Irehmd Queen, Defender of the Faith, Empress of India : To Our Trusty and AVell- beloved Sir John Madden, Knight Commander of Our Most Distinguished Order of Saint Michael and Saint George, Cluef Justice of the Supreme Couit of Victoria, Greeting. TTTE do, bv this Our Commission under Our Sign Appointment of YY' ■' Sir .T. Madden, * * Manual and Signet, appoint a'Ou, the said Sir John K.c.M.d., to be ° ' t . ., ' Lieutenant- Madden, to be during Our pleasure Our Lieutenant-Governor Ciovemor. of Our State oi Victoria and its Dependencies, in the ^Victoiia Government Gazette, Jainiaty 'Jml, 1 })()!. On the appointment of Sir George Sydenli.'.ni Clarke as Governor, the operation of this C'omniission so far as it authorises the exercise of the po\ver:j of the (Jovernor, became dormant, and revives fron) time to time in case of the death, incapacity or removal of the Governor for tlie time being. It will be observed that the oHice of Lieutenant- Governor is personal in that it is not, like that of (Jovernor, per- manently constituted. 694 THE COMMONWEALTH OF AUSTRALIA. To administer Government (iuriiig Governor's absence. Recites Letters Patent constitut' injr Office of Governor. Powers and authorities. Commission of 29th April 1899, superseded. Officers, &o., to talce notice. Commonwealth of Australia, wiih all the powers, I'ights, privileges, and advantages to the said Office belonging or appertaining. II. And further, in case of the death, incapacity, or removal of Our Governor of Our said State, or of his departure from Our said State, We do hereby authorize and require you to administer the Government thereof, with all and singular the powers and authorities contained in Our Letters Patent under the Great Seal of Our United King- dom of Great Britain and Ireland, bearing date at West- minster the Twenty-ninth day of October 1900, constituting the Office of Governor in and over Our said State of Victoria and its Dependencies, in Our Commonwealth of Australia, or in any other Our Letters Patent adding to, amending, or substituted for the same, and according to such Instructions as Our said Governor for the time being may receive from Us, or through one of Our Principal Secretaries of State, and accordinsr to such Laws as are now or shall liereafter be in force in Our said State. III. And We do hereby appoint that this Our present Commission shall supersede Our Commission under Our Sign Manual and Signet bearing date the Twenty ninth day of April, 1899, appointing you the said Sir John Madden to be Lieutenant-Governor of Our Colony of Victoria and its Dependencies. IV. And We do hereby command all and singular Our Officers, Ministers, and loving subjects in Our said State and its Dependencies, and all others whom it may concern, to take due notice hereof, and to give their ready obedience accordingly. Given at Our Court at Saint James's, this Twenty-ninth day of October 1900, in tlie Sixty-fourth year of Our Reign. By Her Majesty's Command, J. CHAMBERLAIN. INDEX. Aboriginals — of certain countries disfrancliised, 126. Australian, and the power as to special racial laws, 46'2-3. in enumeration of population, 118, 120. Acquisition. — See Railways, Sent of Government. of property', compulsory, on just terms, 75, 320-1, 487, 592. " places ac(juired," 2S9. eminent domain, 487, 506-7. of territory with consent of Slate, 589. 593-4. Acts. — See Australian Laws, Golonicil Legislatures, Crown, Imperial, Interpretation, Statutes, Ultra Vires. Action. — See Service and Execution of Process. against States or officers of States, 403, 491 et seq., 497. claims against the Commonwealth, 490-1, 497. Adelaide Convention, 47. Administration, 573-4. — See Executive. Admiralty. — See ^avir/ation and Shippimj. Adoption — of Commonwealth laws by States, -485. of State laws by Commonwealth, 444, of Imperial Acts by Australian legislatures, S-9. of Constitution l)y Convention, 49. Am LT suffrage, 126, 601. Advisory Opinions, 102, 362, 366-8, 388, 394.— See Control, Judicial Power. Agknt, 569. — See Instrumentalities, Officers. convened colonial legislature, not mere agent of Crown, 249. ivhetlier Commonwealth (4overnment agent of State (iovernmeut, 351. Minister, official, >. in dififerent States, and incidence of l^urdens, &c. , 517-8. of production not within commerce power, 551. Conference. — See Federation. \* between two Houses in event of disagreement, 155. Premiers' and Inter-State, 356, 486, 614, 621.— See Gonstihition, Federation, Financial lielations. Imperial, 296, 351. Conflict. — See Deadlocks, Federation, Privy Council. between local and Imperial laws, 81, 110. early conflicts between legislature and Executive and the Courts, 201-2. police and commerce powers, 340, 408, 571. State and federal laws iu Germany and Switzerland, 357-8. — See Control. in Australia, 360-1, 36S, 406 etseq., Addenda. — See Commonwealth and State H. M'here provisions of the Constitution in apparent, 374. in determinations of State industrial authorities, 486. Conservation of waters, 563. — See Commerce Poicer. Constitution. — See Appellate Jurisdiction, Colonial Legislatures, Common- tvealth, Federal Jurisiiictioii, Federation, Powers, Ultra Vires. Constitution Act (Annotated), Alteration and proposed Alterations thereof, Appendix A. Cabinet Government, 83, 84, 103, 168, Addenda.— See Cabinet, Ministers. protection of by Judiciary, 91, 198, 202-3, 2.36 et seq., 357, 359. of Colonial Legislature, amendment ot, 244, 256. ( II INDEX. 707 CoasriTVTio'S— continued. American and British Colonial Constitutions, ilifferences, 248, 326, 424. enumerated and implied powers, 275, 276-9, 370, 422.— See Enumerated, Implied. execution and maintenance of, 296 9. — And see Execution. and the States, 70, 32.j et fieq., 37.".-9, 406, 414, 418, 432-3.— See States. frame of, is that of United States, 341-4, 425. — See United States. opinions by Judiciary on questions relating to, in America, &c., 367-8. interpretation, 208, 236, 369, 372, 3S3, 4.37, 579.— See Interpretation, federal scheme of the, 67, .348, 373-4, 407, 421, 513. alteration of, 247-S, 597 et seq. — See Alteration of Constitution. preamble, "covering" clauses, &c., 76, 603. binding on tlie organs of government established, 77, 79. elements of a modern constitution, 77. prescribing how powers are to be used, 78. provisional arrangements, 77, 79, 125, 129, 325, 488. State Courts and the, 67, 79-81, 212, 242, 414.— See State Courts,. duty of Federal Executive and Judiciary to Constitution, 79. checks on " plenary powers " of State Parliaments, 79, 80-81. bound to uphold Constitution and maintain federal laws, SO-1. colonial constitutions, nature and limits of, 81, 82. plenitude of powers of, 81. "The Constitution "' and constitutional law, S3, 272. the British Constitution, 83. "constitutional" and "unconstitutional," S3, in the Commonwealth, 83, 84. federal jurisdiction as to matters arising under, 91, 207, 212, 214, 219, 501-2. or involving its interpretation, 212, 214, 219, 501-2. what is a " case uruler the Constitution," 501-2. comparison and use of existing Constitutions in framing, 607, 612-3. United States Constitution, High Court's view as to considering, 608-9. English Parliamentary government and tlie federal system, 609. Cabinet, elective Ministries, Party Government, &c., lOS, 609-12, .'\ddenda. federation and democracy in tlie, 612-3. Senate, 613, 614. inter-State Conferences, importance of, 614. protection of citizens by, in .America, ()14-."». in Australia, few guarantees of individual right, 615. distribution of functions and separation of powers in, 94, .303, 319, 321, 326, 421, G16. 708 INDEX. Constitution— fO)i>, Execu- tive Power, Governor-General, Instrumentalitie^i, Interpretation. of Commonwealth and State action, 357 405. the Courts and legislation, 322, 357-68.— See Powers, Ultra Vires. power to determine validity of State or federal Statutes, 357. relation of Courts to legislation and the Executive, 358-9. in Australia, 360-2. advisory opinions, test cases, abstract questions, kc, .362-4, 36G-8. considering constitutional questions as incident of judicial power, 365. disadvantages, 365-8. of naval and military forces, 163, 174-7. — See Defence. of determinations of bodies, not Courts, 305-7. State powers under Imperial Acts, 355. of internal affairs of States, Parliament's power limited, 374-5, of corporations by federal or State law, 470, 471-3, 555. of Parliament over expenditure, &c., 522. — See Public Money. as to State railways, 448, 578, 581-2, 584.— See Railwayi. Convention, 490.— See Cabinet, Federation. constitutional 83, 84, 138d, 144, 294-5, 614. COPYRIOHT, 174, 355, 371, 410, 459. INDEX. 709 Corporations, 266-8, 277, 279, 422, 469-70, 555. taxation of stocks, shares, bonds, &u. of, .335, 3'M'). executive power and the cliartering of, 301. for domestic trade, federal laws and, 376, 37S-9, 3S2, 471-3. " holdini^," and the commerce power, 557. the Northtrn Securities Case, 557. legislative power as to, 469-71. foreign corporations, 469, 470. trading or financial corporations formed in Commonwealth, 469. orders under Englisli Companies Acts how recognized in Australia, 5-6. Courts, 10, 478. — See Appelate Jwindicdon, Control, Federal Jjiriadic- tion, High Court, Judicature, Judicial Power, Privy Council. Commonwealth laws binding on Courts of States, 80-1, 212, 414, 418. as to the consideration of the legality of legi.slation by, 96, 387. powers wiiioh cannot be committed to, 102. control by Parliament of other than High Court, 103, 209, 21U-1. Court of Conciliation and Arbitration, 210, 216. Court of Disputed Returns, 136, 217. and Executive action, .398-405. — See Executive Power. Martial, 10, .308, 316, ,321. of record, 96, 109, 482. CuvKRiN(i Clauses, 76, 003. Criminal. — See Arre>it, Fur/itive Offenders, Jury, Offences. crime as disqualification of electors and members, 126, 127. influx of criminals, 29, 31, 33, 172, 265, 340, 344, .380, 467. religions belief not justification for overt act made, 288. appeals, 231. laws operating extra-territoriall}', 260, 353, .355, 389. law of States, scarcely affected by Constitution, 399. process, service and execution of, 478, 482. extradition of, application by State for refused (U.S.), 493. " case under the Constitution " in criminal prosecution, 501. Crown. — See Executive, E.vtculive Power, Governer-deneral, States. prerogative orders relating to currency and other sul>jects, 7-8. coinage and colonial legislation thereon, 253-4. demise of, colonial legislature not dissolved by, 122. and enacting clauses, 105-6. Governor-General authorized to exercise certain imwers of, 107, 160-1. omission of reference to " Her Mijesty's Ins:ru-'tions," 109. as to prerogative instruments and their aulliority, .300, 301. recommendation of grant of public moneys by, ]3Sd. 710 INDEX. Crown — continued. as to the removal of Judges, 202. powers of colonial legislatures and the. — See Colonial Legidaturta. as to their "plenary powers," '2oo. the power of disallowance, 108, 251, 424. — See Disallowance. the doctrine of delegation, 250 et seq. —See Delegation. comparison with United States, 248, 251, 424 et seq. Legislative and Executive acts are acts of tiie, 161. pardoning power, 164, 301. annexation and cession of territorj', 254, 271. position of Governors in regard to, 299-802, 346. inquiries by Royal Commissions, 101, 309. channel of communications between State and, 345 et seq. reference of matters to Judicial Committee by, 368. mandamus will not lie to, 405. " King can do no wrong," 495. in the Commonwealth, 85. part of federal and every State Parliament, 85, 105. the depositary of the federal executive power, 85, 158, 161, 299. prerogative, utility of, in United Kingdom and Colonies, 85-6. and seat of government, 85-6, 249. and King's authority as head of Imperial Parliament, 252-3. legislation assented to and, 253 4. the Courts and actions involving, 358. of property, exception, privilege, &e., in Colonies, 86, 253. of excluding aliens, &c. , Colonial Executive and, 252, 253, 300. effect of establishment of Commonwealth on, as to States, 86-7. in its Imperial capacity, 87-8, 301. doctrine of unity of, 254-5. as to the severance of tlie bodies of the King, 8S-9. local Executive, and King as head of Imperial Government, 301. as to exemption of Crown as not mentioned in a Statute, 89, 90-1. disallowance of federal and State Acts, &c. , 87, 91, 96, 110, 111, 251 4, 424, 602. — And see Disallowance. in Council, 53, 91, ill, 230-2, 232-40, 253, 367, 427.— See Appellate Jurisdiction, Federal Jurisdiction, Privy Uouncil. territories placed under Commonwealth by, 291, 5S9. alteration of boundaries, &c., by, 254, 271, 595-6. may disallow alteration of Constitution, 602. claims by and against, 164-5, 490-1, 495. Currency, S, 253, 422, 432, 449, 450, 508. — And see Banking, Coinage, Legal Tender. i INDEX. 711 Customs. — See Commerce Power, Financial Rdationn, Money Bills, Prih-ileriet, States, Taxation, Trade and Commtrce. tariff conflicts before federation in Australia, 24-5. preferential tariff bill afrecting treaties, 110. private member allowed to move increase of duty, 138d. as to Senate amendments, 143, 149. what is a " law imposing taxation," l.iO. liability of State for duties of, 90, 241, 416, 418, 4.3.3, 519, 520. " laws," as distinguished from " proposed laws," 247. breaking customs' seals on ship's stores on the high seas, 265, 281. prohibited imports, 97, 98, 99, 101, Addenda. powers eonterred by Imperial Acts as to, 263, 355. as to Assembly resolutions foi' protecting revenue, 405. in exclusive power of Commonwealth, 330, 449, 504, 514, 528, 529. duties of, not a " tax on property," 522. temporary limitation upon application of revenue from, 522, 526, 533. establishment of uniform tariff, 404, 449, 529. time of imposition of uniform duties, 529. duties of, as means of regulating foreign commerce and protecting industries, 381, 549. freedom of trade and commerce, 564 et seq. — See Trade and Commerce. transfer of Departments to Commonwealth, 171, 290, 449, 504, 514, 528. what matters dealt with by Department, 174, 177. dutiable goods, 150, 281. duties, .3i»4, 315, 507-8, 514, 515-6, 519, 531. Deadlocks, 112, 118, 140, 202, 599-600. disagreements between Houses, how reconciled, 154-7. dissolution of both Houses, 155-6. joint sitting and amendments thereat, 155, 156. DiiiBTS. — See Financial delations. Dkfence, 262-4, 329. — See liailways, Xaviijation and Shijiping. questions of in relation to a federal union, 32, 39-40. — See Federation. powers granted by Imperial Parliament, within exclusive power, 35.5. as to expenditure, and Naval Agreement IJill, 523. agreement for subsidy of an Australian squadron, 39-40. Colonial Xaval Defence Act, 204. Governor as Vice-Admiral, 329. transfer of State departments to Commonwealth, 171, 174, .329, 44S. naval and military organization, Ministry responsible for, 174, 176. as to clause vesting command in Oovernor-(Jeneral, 163, 175-6, .329. Imperial and local control in self-governing Colonies, 175, 176. Governor's Commission, &c., 175-6, 329. 712 INDEX. Defence — continued. functions of military and civil officers in adniinistraLion, 176-7, 17S. control of forces, 163, 175-6, 329, 448. — See Govtrnor-G f.ntral. as to public service legislation, 187. no engagement or promotion constitutes a civil contract, 194. control of railways with respect to transport for, 448, 578, 579, 581. State not to raise military force without federal consent, 330, 338, 448. Commonwealth to protect State against invasion, 297, 338, 404, 448. and on application of State lOxeculive against domestic violence, 297, 338, 448. claim for pay for services in South Africa, 89. Delegation, 100, 161, 279, 300-1.— See Colonial Legislatures. of legislative power to executive, 98-9, 100, 101, 320. of power to make rules, &c. to judiciarj', 102. by Crown, extent of, measure of responsible government, 86. doctrine of delegated power, 101. American constitutions and the sovereignty of the people, 248. colonial legislatures not delegates of Imperial Parliament, 101, 248-55, L-'79. exceptions, 271-2. as to delegation of prerogative by assent of Crown to an Act, 252, 254. of Commonwealth powers to States, as to legality of, 440-1, 443, 444. Departments, 167, 289, 290, 296, .330, 426, 444, 448, 449, 504, 526.— See Executive, Public Service, and titles of Departments through- out Index. ot government, purpose of the separation of powers, 97. Parliamentarj' control over, 103. permanent heads, 177. protection of federal, in performance of their duties, 298. Dependencies of the Commonwealth, 75. Determination — See Judicial Poicer. Directory, 244, 246-7. — See Mandatory. Disability, 128. prevention of, by reason of residence in another State, 287, 330-4, 342. of aliens:, power to remove, 464. on sale of products of another State, 393, 565. Disagreement, 154-7, 600.— See Deadlocks. Disallowance, 87, 91, 96, 108-11, 251-4, 346, 347, 424, 461. 602.— See Assent, Crown, Governor-General. INDEX. 713 Discretion-, ;^05.— See Judi'ial Power. of executive, as to delegation of legislative power to, 9S-9, 100- 1, 320. of Governor-General, 108-11. DiscRiMixATiox— See Cojumerre Power, hiter-Slate Commission. between tlie produce of different Stales, 39."?, 565. in taxation, 283, L'S6-7, 444, 505, 516-S, 615. prevention of, by reason of residence in anotlier State, 287, 330-40, 342, freedom of inter-State trade, &c., 564 et seq.—See Trade and Coinmerce. as to railways, 574, 576, 577-8, 583, 584-6. Diseases, 173, 340, 343, 570.— See Quarantine. Dispute — See Conciliation and Arhilration, Employers and Employe-^. as to wages &c. on sliips trading to India, 282. in relation to employment on State Railways, 38G, 391, 451, 579-80. as to validity of referendum, 606. disputed elections, 114-5, 136-7, 316.— See Elections and Electors. Distribution — of powers in the Commonwealth government, 93 et seq., 273, 609. of the judicial power, 199, 209. of federal jurisdiction by Parliament, 214-9. of powers by Parliament, how restricted by the constitutional distribu- tion of power, 93 et seq., 279-80, 292 et seq., 303 et seq. as to State powers under Imperial Acts, 353-4. of revenue among the States, 530.— See Financial Relations. of functions between Commonwealth and Stales, 616.— See Common- wealth and States, Exclusive, Sfparation. Divorce, 97, 269, 474-5.— See Marriar/e and Divorce. Documents, (commonwealth and State Public, 669 et seq. Domicile, 3.33-5, 466, 475. " Due Process of Law"' (U.S.), 313-5, 317, 320-1, .377. Duties — See Customs, Excise, Taxation. Elections and Electors— taking vote at referendum, G05-6. violence and corruption at (U.S.), 277. Federal Convention, 45, 46-7. casual vacancies, 114. for both Houses, 115-6, 1)7. Senate elections, 113-6, 664. distribution ot seats, 118-20. for House of Representatives, 115-6, 1 17, I2J-3. 714 INDEX. Elections and Electors — continued. electoral roll, 182. candidates, nomination of, &c. , \^2. method of voting, 113, 115, 124-5, 132, Addenda. " electoral expenses," 133. offences, &c., 1,33-5, 277. disputed elections, 114-5, 136-7, 217, 224, 308, 316. Court of Disputed Returns, 136-7. Chief Electoral Officer and Commonwealth Electoral Officer, 179. electoral divisions, 120-1, Addenda. conduct of, 132. qualification of electors, 113, 124, 12G. of candidates, 127. uniform franchise now adopted, 125-6. adult suffrage, residence, enrohnent, &c., 126. disqualification, 126. as to aliens and naturalized Chinese in Canada, &c. , 463-4. consent of State electors for eertaia alterations of Constitution, 111, 594, 602, 605. or of limits of .States, 594, 605. alterations of Constitution, 600, 602, 605. Eminent Domain, 289, 487, 506-7, 581. — See Acquisition. Employers and Employes — See Commerce Power, Conciliation and Arbitra- tion, Railways, Trade and Commerce. emploj-es on higli seas, award applying to disputes &c. , 266-9, 282-3. employers' liability legislation, as to constitutionality of, 389, 554. conciliation and arbitration in industrial disputes, 391, 450 et xeq., 580. Jumbunna Coal ISline Case. — See Table of Cases. State Railway Servant'^' Cas''. — See Table of Cases. Union Label Case. — See Table of Cases. Woodworkers' Case. — See Table of Cases. conditions of labour and remissible excises. — See Kiiu/ v. Barger in Table of Cases, of employment not conanerce. 580. combinations of, 452-3. inter-State railway traffic and commerce, 582. State Wages Board and federal awards, 408, Addenda. Enumerated, 93, 341, 447, 460, 506. — See Judicial Power, Legislative Poiuer. powers. Commonwealth Government is one of, 69, 348, 379, 513. position in the colonies, 273. differences in the nature of the, 370. INDEX. 715 Entmekatkd — continued. matters in Commonweal lli legislative power, '273-5, 445, 510, 525. in Canada, 2S4-5, :U2, 369, 379. as to necessary implication, 275. in which High Court jurisdiction exclusive, 212, 215, 217-S. of federal juri.sdictiou, 199, 20()-9, 314. enumeration of population, 119-20. — See Census. Evidence, 245, 310, 321, 477. — See Records Recognition. ExCKPTloNS, 210, 221-4. — See Appellate Jurisdiction, Federal Jurisdiction. Excise, 507, 511, 515. — See Co?wme>ce Power, Customs, Financial Ifelalious, Taxation, Trade and Commerce. prevention of " tacking," 144. transfer of departments, administration of laws, &c., 171, 174, 449, 52S. as to requirements of laws imposing duties of, 142, 247, 374-5. State powers as to excluded, 330, 514, 528, 529. State regulation of industries by licences, 375. attempted regulation of industrial relations, 376, 3S2, 511, 516-S. power of Parliament to deal with exclusive, 449, 514, 529. temporary earmarking of revenue from duties of, 522, 526, 533. Excr.usiVE, 8, 210-1, 386, 407, 563. — See Commonwealth and States, Powers. matters in which High Court jurisdiction, 212, 215, 217-8, 491, 494, 501, 592. power to make local laws wliere power is, 284, 286. power of the Commonwealih, 70, 75, 274, 288-91, 355, 379, 407, 445, 510, 528, 592. — See Taxation. express and implied exclusion of State legislative power, 330-4. commerce power of Congress partly, -340-2, 442. States and Imperial authorities, where Commonwealth jiower not, 351. as to State powers under Imperial Acts, 355. operation of State laws before they are superseded, 41 1-2. State instrumentalities and federal powers when, 4.32-5. delegation to States of matters within exclusive powers, 443-4. transferred departments, 448-9. conciliation and arbitration, and internal trade of State, 455-6. as to powers of Inter-State Connnission, 573-4. " places acquired," 592. ExKCL'TioN — See Service and Execution of Process. of federal powers, matters incidental to, 103, 242, 276-7, 4.38, 488, 642. of federal laws, 79, 158, 296, 573. — See Executive, Executive Power. of High Court judgments, 241-2, 420. of Acts of Congress, State Conrts suspending, &c., 400. 716 INDEX. Executive, 79, 273, 296, 348, 349, 351. —See Cabinet, Control, Croion, Executive Power, Governor -General, Ministers, United States. no federal, in the Federal Council, 37. duties, disposal of rests with colonial legislature, 95. no inherent legislative power, duty of courts, 98-101, 293. as to power of legislature to delegate to, 101. — See Delegation. l)reponderance of Parliament, 102, 289. matters incidental to execution of federal powers, 103. — See Execution. organization and regulation of executive, 103, 158. cabinet government in the Constitution, 101, 103, 168-9, 295, 297-9, A ddenda. protection uf judiciary against, 103, 200-5. use of executive force beyond linuts of Colony, 269-70. " ministerial " and " administrative," 294, 308. functions of, 294 et seq., 345 et seq. inquiries. Royal Commissions, &c., legality of, 297, 310 et seq., 321-2, 323. — See Judicial Pvwer. Courts Martial really instrumentalities of the, 308, 316-7, 321. matters submitted to with power of determination, 305, 317 et seq. — See Judicial Poicer. as to questions of law addressed to judiciary by, 366-8. provision of machinery for carrying out Acts, 158, 159. Federal Executive Council, and function of, 165-7, 171, 172. "Governor-General" and " Governor-Cetieral in Council," 166-7. statutory powers of colonial Executive, 167. powers emanating from the Crown, exercise of, 167. appointment of olKcers and Judues, 167, 200. Ministers of State, appointment, tenure, offices, salaries, 103, 165-8. organic relation between Ministers and Parliament, 168-9, Addenda. as to elected Ministers, 168, 610. houorar}' ^Ministers, law officers, &c., 169-70. steps taken on inauguration of Commonwealth, 170-1. Departments of State, 171, 289, 526. transfer of certain State Departments to Commonwealth, 171, 448-9, 528. organization of Conunonwealth administration, 172-96, 448-9. — See Public Service and titles of Departments throughout Index. States as units of administration, 178. "Prime Minister," 168, 170, 172, Addenda. Inter-State Commission, main character of, executive, 573-4. " places acquired " and seat of government, 289, 592. acts, 304-5. — See Jwliciul Power. INDEX 717 Executive Powkh, 9S, 2o2A, 292-302, 358.— See Cabinet, Crown, Execution, Executive, Gvvernor-Gent7-al, Judicial Power, Legislative Power, Roj/al Instrnctiona. vested ia King and exercised by Governor-General, 85, 93, 158, 161, 299. as to powers of Crown not committed to Governor-General by Constitu- tion, 1G4. and petitions of riglit, 164-5. " officers liable to retire upon political grounds, " 295. duties of Commonwealth Executive, 93, 295-9.— See Execution. Colonial Office view, 295, '296, 345 et seq. execution and maintenance of Constirution and laws, 79, 296-9. as to position of State Executive, 295-6, 297. difficulty as to source of, in colonies, 299. how avoided in Constitution, 299. Crown's executive power, how applicable, 299-"00. views expressed in Toy y. Mmijrove, 30U-1. Letters Patent and Governor's Instructions, 301, Appendix B. local Executive and King as head of Imperial Government, 301. control of, by Courts, 398-405.— And see Control. over the " official act," 398. mandamus, prohibition, injuuclion, certiorari, habeas cor^ms and quo warranto, 398-401, 404-5. control over official acts of State officers, 402, 40.S-5.— See Judicial Power. ExPKKDiTL-RE, 87-8, 133, 137, 160, 417, 522, 526-7. -Se-j Audi/, Money Bil/i, Puhlir Money. Ex I'OST FACTO Laws, 95, 315, 322, .332. External Aekaiks, 171, 349, 370, 460.— See Treaties. what Department embraces, 172-3. work political rather than administrative, ISO, 461. legislative power as to, 460, 401, 462. treaties, extradition, fugitive offenders, &c. , 31S, 461. absence of, favoured growth of intercolonial rivalries, &c., CO. Governor General and Bills reliting to, 110. limitations on Colonial Legislatures as to, and Parliament, 280 tt seq. as to compacts between State and foreign power or other State, 356. and navigation laws, 562. communications, &c., of States witli Imperial Government, 345 et xeq. as to international agreements concerning labour conditions, 462. duty of providing for external security, 338. Extradition, 272, .354, 461, 493. 718 INDEX. ExTRA-TERKiTOKiAL, '280 tt stq., 462. — See Colonial Leijislatures, Legislative Fairer. operation of colonial Acts assented to b}- Crown, 2.)4. powers of colonial legislatures, limitations, &c., on, 2G0-4, 270-1, 435, 479, 481. operation of colonial legislation by special grants of Imperial legisla- tion, 271-2. as to taxing power of States, 334. as to federal and State powers under Imperial laws since federation, 355-6. Family Law, 474-5. — See Marriage and Divorce. Federal — See Commoniueallh, Oominonioealth and States, Constitution, Federation, Powers, United States. Council, 11, 32-3, 37-9, 40, 487.— See Federation. area of authority wider as to Britisli ships, 75. repeal of Act, 76. Acts of, as to extension of jurisdiction of colonies, &c. , 476-7. power of dealing with matters referred l)y colonies, 485. Courts, 198-9.— See Courts. appeals from, a revising function of Crown, 87, 91. State Courts cannot discharge persons in custody by order of, 400. State Courts caunot issue prohibition to, 401. mandamus or prohibition to federal officer or, 212, 401. Executive Council, 165, 171. — See Executive. Officers. — -See Mandamus, Officers. Statute, 400, 426. — See Control, Interpretation, Legislative Power, Ultra Vires, United States. power of Courts to determine validity of, 357.— See ■'Statutes. Federal Jurisdiction — See Appellate Jurisdiction, Instrumentalities, Judicial Power, Powers, States, United States. of High Court over enumerated matters, 199, 206, 314, 489 et seq. characteristics of the judicial power of the United States, 206, 207, 314. " matter," meaning of, 208, 501-3. — See Matters. matters enumerated in sees. 75 and 76 of Constitution, 208, 209, 489. High Court, jurisdiction of, 209. power of Parluiment as to furtlier distribution of judicial power, '99, 207, 209, 210, 211, 224h, 403, 416, 489, 497. defining jurisdiction of any other federal Court, 209. High Court can hear appeals from all federal Courts, &c., 210. subject to prescribed exceptions and regulations, 210. defining extent to whicli jurisdiction exclusive, 210-1. as to limit of power to confer federal jurisdiction, 213-4. INDEX. 719 Federal Jurisdiction — continned. distribution of, under Judiciary Act 1903, 214-9. High Court, 214, 223. original jurisdiction and powers thereunder, 214, 215-6. exclusive, 212, 215, 217, 218. "federal Court" esta])lislied by Parliament, 216. Court of Conciliation and Arbitration, 210, 216-7, 456. as to appointment, tenure, and removal of Justices of all federal Courts, 200, 2\Q.—8ce Judicatitre. Court of Disputed Returns, nature of, 217. investing State Courts with federal jurisdiction, 199, 211-2, 213-4, 211 et seq., 384-5, 401, 420. given jurisdiction in all matters of federal jurisdiction. 217. no oilier jurisdiction in such matters, 217-S. conditions and restrictions of grant, 218. constitution of Stale Court of summary jurisdiction, 218. when appeal may be brought to High Court, 218,224, 227. appeal by special leave though State law prohibits appeal, 218. decision of State Court from which appeal lay to Queen in Council, 218. — See Ap))ellate Jurisdiction. appeal under Order in Council or by special leave, 218, 224. removal of cause under Constitution, kc, to High Court, 219. subjects of, 207-8, 214, 215, 489-503.— See Claimn against the Govern- ment, Gonntitution, Consuls, I^er/islative Power, Ma)id'imm, Navigation and Shipping, Powers, S/nles, Treaties. High Court as Supreme Court of, in Commonwealth, 223. State Court jurisdiction as to torts, crimes, &c., by federal officer, 399, 401. as to habeas corpus, 212-3, 400. — See Habeas Corpus. State Court is exercising, when Commonwealth sues in it, 491. Federation, 1, 587-8, 590. — See Commonwealth, Constitution. history of the Australian federal movement, J7-64. Sir Charles Fitzroy'.s suggestion. 17-S. Committee for Trade and Planlatious, report in 1849, 18-9. Constitution Hill of 1850, 19. Covernor-General, appointment of. in 1S")1. 20. abandonment of I'^irl (Jrey's policy in 1852, 20. Wentwortii and Dully, etforts of, in New South WmIcs and Victoria, 20-3. growing difficulties through taiifT.-, &c., 24-6. 720 INDEX. Fedekatiox— continued. Daffy's Royal Commission on federation 1870, 26-7. '\ proposal as to treaty-making powers to colonies, 27-8. foreign affairs, pressure of, on tlie colonies, 28-9. Pacific questions, French convicts, German interests, &c., 29, 30. agreement of 1878 as to New Hebrides, 29. New Guinea, repudiation of action of Queensland as to, by Lord Derby, 30. Intercolonial Conference of 1880-81, 32. first Australasian Convention on, at yj'dney, 1883, 30-3. tlie " Monroe Doctrine of Australia," 30. resolutions as to New Guinea, New Hebrides, &c., 30-1. Ftderal Goimcil of Australasia Act in 1885, 33. New South Wales aiul New Zealand stand out. 33, 38. Intercolonial Conferences, 1863-83, 33. matters discussed, 33-5. failure of, causes of, 35-7. Federal Council of Australasia, .33, 37-9. hostility of New South Wales, 38, 39. defence matters, 39. Colonial Conference of 18S7, 39-40. report of inspecting officer recommends federation, 40. Melbourne Conference of 1890, 41. proposal for National Convention, 41. National Australasian Couvention at Sydney, 1891, 42-3. Draft Bill framed, 43. popular movement in favour of, 44-5. Corowa scheme for election of Convention to frame a Constitution, 45, Conference of Premiers at Hobart, 1895, 45. Enabling Bills passed in colonies except (Queensland, 45-6. Western Australian Bill, 46. Convention elections of 1897, 46-7. Adelaide, Sydney, and Melbourne sessions of Convention, 47, 48. adoption of Bill by Convention, 49. referendum of 1S98, 49-50. Conference of Premiers, 1899, 50. amendments agreed upon, 50-1. referendum of 1899 and voting thereon, 51. as to Queensland and Western Australia, 51-2. delegation to England, 52. London Conference, 52. memoranda by New Zealand and Western Australia, 52-3. INDEX. 721 Federation —coiUiiiupjl. niinof amendments, o3. question of appeal to Queen in Council, 53-5. debate in Imperial Parliament, 54-5. Royal assent to Convention Bill as altered, o5. suitability of the Australian group for political union, 55-7. comparison with Canada, &c. , 50. difficulties, 57 et seq. Professor Jenks on the probabilities of federation, 57. as to Australian interests in Pacific, 5S-9. Fiji, 74, 593. Final and Conclusive, 218, 22'2, 224, 232, 384.— See Aiypdlalt Jurisdiction, Ftderal Jurisdiction. Finance and Trade, 5U4 et seq. — Hee Commerce Ponder, Financial Relations, Inter-State Gonwiis'iion, Railways, Taxation, Tradt and Commerce. Financial Relations— See Audit, Public Money. and the preponderance of Parliament, 103. and the Federal Council, 38-9. powers of the two Houses, debate on, 149-50. between Commonwealtli and States may be made a subject of judicial determination, 499. adjustment of, in Constitution, 524. difiference between American and Australian Constitutions, 524. is Commonwealth power to appropriate money a general or a specific power ? 524-5. iii Commonwealth and States, 528 et seq. Commonwealth control of customs, excise and bounties, 444, 528-9, 531. State Departments of customs and excise transferred, 528. State properties used by Departments vested in Commonwealth, 528. uniform cariff", establishment of, 529. complication as to date of first imposition, 529. protection of revenue, 529. financial problems, 530, 531. periods till, and for five years after imposition of uniform duties, 531 2. the " bookkeeping " systen-., 532, 535. third period, .3.32. " bookkeeping " system oidy as long as Parliament pleases, 532. surplus revenue and definite right of States to, 525, 532-3. the " Braddon Clause," 533. as to financial assistance to a State, 525, 533. as to assumption of State debts, 534. Z7. ! 722 INDEX. Financial Rklatioxs — coutiiuied Audit Aft, Trust Accounts under, 535. Surplus Revenue Act and constitutionality tliereof, 535-7. '^1 what IS " expenditure " t 537. consideration of, at close of " F.raddon " period, 537. defence and old-age pension liabilities, 537. conferences of State Ministers, &c. , 537-8. Premiers' and Inter-State Conferences, 1903-8, 538-42. as to State debts, future loans, surplus revenue, railway revenue, interest, " Braddon Clause," &c., 538-42. Sir William Lyne's sclieme, change of policy, 542-3. protests of State Ministers, 544. Hobart Conference, 544-5. " Braddon Clause " abandoned, 545. objections of Commonwealth Government, 545-6. agreement arrived at, Melbourne 1909, 546, 547. alteration of Constitution, bill for, passed, 548, 606. reference to people of, in 1910, 548. also alteration as to State debts, 548, 606. FisHKRiKS, legislative power as to, in Australian waters beyond territorial limits, 281, 462. Foreign — See Naviriation and Shippiufi, Powers. affairs in Pacific, &c., and Australian union, 28-9. countries, reservation of Acts relating to, 110. State relations and airangenieuts with, 356. commerce, federal power to legislate as to, .331. — See Cojnmerce Power, Trade and Commerce. exclusive power mitigated by State police power, 340-1. not to impinge upon internal trade and commerce, 374-5, 384. federal legislative power as to external matters, 460-8. — See Conmierce Power, External Affairs, Fis}ierie>^, Legislative Power, Natmxilization and Aliens, Trade and Commerce, &c. , &c. corporations, 469-70. — See Corporations. Fkanchi.se, 113, 124, 125, 464.— See Elections and Electors. people of race excluded from, not reckoned in computing population, 118, 120. aliens and the State, 463-4. Freedom — of inter-State trade. — See Commerce Power, Euilicays, Trade and Coin- merce. States excluded from legislative power impairing, 330, 342, 380. as to State police power, ,342-4, 380. implied from absence of enactment by Congress, 442. INDEX. 723 Fugitive Ofkknders, 401.— See Criminals, Extradition, Federation, OJences. diflferences of opinion among colonies as to legislation advisable, 36-7. extra-teriitorial powers given to colonies as to, '2<)I, 476, 483. return of bankrupt from Australia for quitting Natal, 270-1, .353. State powers under Imperial law, 272, .3.53. demand to Slate officer to surrender to federal government, 438-9. warrants for, under Service and Execution of Process Act, 482. Full Faith, 478, 480.— See Records Recognition. Genkral — Assembly, proposal to establish for Australia, IS, 19. elections, 122 3. terms, interpretation of, 378, 385-6, 3S9-03, Addenda.— See Ultra Vires. Government— See Colonial Leqidaturen, Commonwealth, Constitution, Exec- utive, Executive Potver, Poivers, seat of, 289, 590-2.— See Sent of Government. of territories, &c., 283, 291, 486, 588.— See Acquisition, Territories. claims against the, and tlie judicial power, 318-21. as to immunit\- of instrumentalities of State, 430. Governor, 116, 404, 439, 606.— See Colonial Legislatures, Crown, State Governor. King's delegate to exercise Royal power committed to him, 85. modes of enacting in name of, &c., 105. communications with Colonial Office, &c., 345 et seq. as Conunander-in-chief, commission and Colonial Office regulations as to, 175-6. Chief Justice Higinbotluim's view, 17"). as to right of communication lietween, and commanding officer, 176. duty (if, on question of removal of a Judge, 202. and the exercise of the executive power of a colony, '-'99-.302. — See E.vecutive Power. view of Chief Justice Higinbotham as to tiie Letters Patent and other prerogative instruments, 30bj. in Council, as a Court of error and appeals, 227-8. mandamus will not lie to State, 405. as to alteration of common boundaries, 595, 596. Governor's instructions, 300, 301, 329, 346, 689.— See Executice Power. Governor-Gknkral, 299, 327, 329, 674, 679.— See Crown, Exeeulive Poiver . King's representative in Connnoinvralth, 86, 158 el seq., 299, 346. with powers and functions of King assigned to him, 107, 100, 161, powers and duties of, to Parliament, 107, 161. advice of Ministers, when followed or disregarded, JU7il. 724 INDEX. Governor-General — continued. assenting to legislation, withholding, or reserving for Royal assent, 107, 108-11, 161, 247, mi-2.-See Disallowance. Royal instructions, as a guide to his discretion, 108-10. usual reference to, omitted in Constitution, 108, 109. non-reservation of Bill prescribed for reservation, lOS-9. authority of, derived from Constitution, 110. dutj' of, as an Imperial officer, 110. disallowance by Crown of Bill assented to. 111, 602. Letters Patent, 107, llU, 159, 160, 162, 163, IGa, 670. Commission to Earl of Hopetoun, 159, 171, 681. dormant commission, 159, 160, Addcvda. salary, additional allowances, &c., 160, 526. powers exerciseable by person adiniaistering the government, 160. deputy, 160, 162, 301-2. office and powers of, description of, 106-7, 158, 160-1, 165. government as residing in the King, 161. delegate of the King to exercise certain powers of Crown, 161. "His Majestj''s representative," 161. prerogative, exercise of, 161-2. — And see Grown. in Colony under Crown authority, and not by Statute, 162. under Constitution, a statutory power in many cases, 162. when declared by Statute exerci.seable by particular officer, 162. as to Commission to '■ open " First Parliament, 162-3. control of forces of Commonwealth, &c., 163, 171, 175-6. where Crown's powers not committed to him by Constitution, 164, 302. as to pardoning po\\'er, 104, 301-2. as to petitions of right, 164-5, 495. powers, &c. exercised outside prerogative, 165. appointment of, in 1851, 20. formalities at opening and prorogation of Parliament, 123, 146-7, 163. appointment of first Federal Executive Council, 171. signature of warrant for issue of public money, 184. channel of communication with Colonial Office, &c., 345 et seq., 350. recommendation for honours, ?>^0. submission of alteration of Constitution to people by, 605. in Council, meaning of expression, 166-7. no legal process to compel, to appoint judges, 203. appointment and removal of Justices of High Court by, 200, 216. INDEX. 725 Habeas Corpus — State Courts and federal officers, &c., 212-3, 400-1. federal jurisdiction of, as to, 401. High Court may direct issue of writs of, 215-6. available to release federal officer arrested wliile protecting federal Judf,'e, 298-9. control by Courts of official acts by means of, 398. power of federal judicature over acts of State officers, 402. Health, 337, 340. — See Police Power, Quarantine. Hum Court, 220-42, 622-3. — See Appellate Jurisdiction, Federal Juris- diction, InHtrumentalitif.s, Judicature, Judicial Power, Privy Council. establishment of, 199, 220. as to appeals from, 91, 234. — See Appellate Juriadiction. as to conflict between, and Privy Council, 91, 427. power to make Rules of Court, 102. constituted Court of Disputed Returns, 136. judicial power measured by jurisdiction conferred on, 199. vested in and exercised by, 198. Constitution itself crea.tes and gives jurisdiction to, 109, 209. appellate and original jurisdiction given, 199, 209, 210, 215, 221, 223, 489. — See Appellate Jurisdiction, Federal Jurisdiction. certificate of, in certain constitutional cases, 222, 224-7. superior Court of record with power to punish for contempt, 199-200. appointment, removal, tenure and emoluments of .Justices, 200, 203-5. Judiciary Ac/, and Hi;)h Court Procedure Act, distribution of jurisdic- tion, &c. by, 199, 224. federal jurisdiction over enumerated matters, 206. — See Enumerated. as to power to invest State Courts witli, 213-4, 217-S. — See Federal Jurisdiction. removal of constitutional matters into, 219. Privy Council and doctrine of instrumentalities, 423-9. duty of State Courts to act in execution of judgments of, 419-20. differences of opinion as to Conciliation and Arbitration Act, 451 etseq. suits between States committed to exclusive jurisdiction of, 494. matter between State and resident of another State, 495-9. as to immunity of State from suit save by its own consent, 496-7. as to whether State Court acting in State or federal jurisdiction, .")02-3. validity of referendum may ))e disputed on petition to, 606. head of judicial s^'stem of Commonwealth and States, 71. * mandamus, &c. — See Habeas Corpu", Jfnudaniiis, Officers, Prohibition, 72G INDEX. HiGINEOTHAM, ChIEF JUSTICE — view of, oil control of forces and (Jovernoi's Instructions, 175. as to responsible government, 300-1. History — of Australian federation, 17-64. — See Federation. of financial relations between Commonwealth and States, 528 et seq. — See Financial Itdalions. Home Affairs, 171, 173, 179. HorsE OF Commons, 123, 141, 144. as to the Commons Resolutions of 1850, 144. House of Lords, 141, 144, 367-8. House of Representatives • — See Parliament, Representatives. Houses. — See Elections and Elector >i, RepreseMtatives, Senate. provisions as to both, 124 et seq. relations of both, 1,39. —See Deadlocks, Money Bill^. double dissolution and joint sitting, 154-7. removal of Justices, 200-3. alterations of the Constitution, .599 et seq. Immigration and Emigration, 340, 344, 432. — See Criminals, Xaturaliza- tion and Aliens, Police Power. legislative power as to, 465-7. what are, 465-6. " immigrant," '' prohibited immigrant," " Australians," 466. power to exclude any person whether alien or not, 466. power re-inforced l)y power as to trade and commerce, &c., 467. regulation of Chinese immigration, joint Australian action suggested, 35. 2 and the doctrine of progressive interpretation, 373. '■ Immunity, 138a. — See InstrnmenlaUties, United States. "privileges and immunities " article in U.S. Constitution, 332. of State from suit, how affected, 496-7. jr I Imperial. —See Australian Laws, Colonial Leijislatures, Croion, Governor- 'f Central, Governor, States. Acts — as to repeal of, b}' Parliament, 487. applicability of, to colonies, 4-7. as to fugitive offenders, &c. , 476, 477. — See Fugitive Offenders. State powers since federation, under, 353. alterations of Constitution must not be repugnant to, 603. paramount over colonial legislation, 72, 81, 249, 257 et seq., 354. i t INDEX. 727 Imperial— coH^uuter^. Conferences, and the representation of the States, 296, 350-3. Governnieni, 401. constitutional law of Coimnonwealtli as a ineinl)er of the Empire, 83. powers of local Executive and King as head of tlie, 301. relations of State Governments with, 29.50, 345 et seq. — See States. Parliament, 54-5, 77, 487. — See Auntralian Lnws, Colonial Legiflatxirea, Commonweallh, Federation, Imperial Acts. colonial legislatures not delegates of, 101, 248, 249-50, 279. cases where colonial legislature instrument of, 272. Implied — See Incidental, Renerved, State I'oicers, United Stales. express mention of power whose inclusion would have been, 447. Powers of a government of enumerated powers, 275, 276-9, 422, 520. of Congress, incorporation of National bank within, 422. Prohibitions arising from separation of powers, 94. — See Powers. of Constitution, and the necessary powers of .States, 437. reserved powers of Stales and, 375, 384, 473, 5G6. Restraints, ."575 ei seq. — See Interpretation, Taxation. on State legislative powers, .3.30-1, 427, 566. — See States. on Commonwealth as to internal trade of State, 340, 375-8, 408. and tile taxation of federal salaries by State, 427, Addenda. Importation", 97, 9S, 99, lUl, 241,433. — See C«s^o?n.*, Instrumentalities. Imposition — of taxation, 141 e< seq., 246-7. — See Deadlock'^, Money Bills. of uniform duties, 342, 344, 404, 449, 514, 521, 529.— See Customs, Financial Relations, Taxation, Trade and Commerce, Incidental. — See Let/islatire Power, Powers. powers of Congress, 276 et seq. — See Leijislative Power, United States. inciuiry is, to other powers of government as well as judicial, 30S-9. effects of interference with instrumentalities, 435-6. legislative powers, 10."<, 242, 276, 323, 448, 487-S, 525. Income Tax, 566-7. assessment, not diminution of Judge's remuneration, 200. by State on federal salaries and doctrine of instrumentalities, 2.36, 426-7, Addenda. — See Appellate Jurisdiction, Instrmnentalities. when matter of federal jurisdiction, 502. Industkies, 454. — See Conciliation and Arbitration. and police power of States, 337. State may regulate by licences, thougli called "excises,"' 375. 728 INDEX. Industries — conliimed. attempt to regulate, by federal excises, 376, 382, 511, 516-8. — See Interpretation, l^axation, Ultra Vires. Indufitries Preservation Act and domestic corporations, 376, 382, 471. in two States — the Broken Hill Case, 454, Addenda. Infants, 474, 475 — See Marriage and Divorce. Injunction — against officer of Commonwealth, 208, 499. protection of mail services in cases of interference with transit by, 299. control by Courts of official acts by means of, 398. Commonwealth Government against State officers, 402. controversies between riparian States, 494. Inquiries, 101-2, 297, 309-13, 321-4.— See Judicial Power. Insolvency, 473. — See Bankruptcy, Legislative Power. Inspection Laws — See Taxation. Commonwealth can repeal State, 414, 514, 530, 560. and federal commerce power, 340, 343. — See Police Power. Instructions, 674, 679. — See Governor-General, Poyal Instructions. to Governors of States, 300-1, 329, 346, Ajipendix B. effect of omission of reference to Royal, in Constitution, 109. as to reserving Bills involving Imperial interests, &c., 110. as to the pardoning power, 164. Instrumentalities — immunity of, doctrine of the, 331, 421-37, 442-3. first statement of doctrine in M'Cidlorh v. Maryland, 277-9, 422. applicable to all control over federal operations, 423. and conversely to federal control of State operations, 423, 429-31. history of the doctrine in Australia, 91, 236, 423-9. State duty on receipt for federal salary, 424-5, Addenda. State income tax on federal salaries, 2,38, 423-8, Addenda. in State Coi;rts and High Court, 423 et seq. refusal of certificate for appeal to Privy Council by High Court, 427. appeal direct from Supreme Court to Privy Council, 427. Privy Council as to implied restraint on State powers, 427. as to whether High Court must follow Privy Council, 238-9, 427. special leave refused by Privy Council, 239, 427-8. as to restraint by necessary implication, 428. other applications of doctrine, 428-9. federal interference with State instrumentalities, 429. State Railway Servants' Case, 429.— See Bailivays. INDEX. 729 Instkumkntamties— ro7irtH7/e^i. doctrine of immunity in America, 429-;i0. to what operations applicable, 429. inter-State commerce, J'iO, 442. in favour of States, less extensive, 430-1. limitations of doctrine, 431, 432, 434. tax on State liquor saloons held good, 431. Gommonwealth Arbitration Act and State Railways, 386, 431. — And see J^ailivay-i. where places and persons are within exclusive powers of Common- wealth, 432-5. States bound just as private individuals, 433. customs' duties apply to goods imported by States, 433-5. as to incidental effects, 43.'5-6. — And see Taxation. taxation Acts &c., 435-6. limits of immunity of inter-State commerce, 436. State tax remotely affecting federal power, 436. federal limitations and implied prohibitions not to destroy neces- sary powers of States &c., 437. Crown's power of disallowing Acts and the doctrine of, !JI. of the executive power of United States, Courts Martial are, 316-7. federal, submitted to State authority by Commonwealth, 442-3. State, and navigation laws, 560. Insurance, 192, 469, 551. Interpretation. — See Control, Poivert, Railways, Ultra Vires. definition of judicial power, 303, 313. principles of, in determining validity of laws, 243 el seq., 369. of the grant of power, 369-79, 579. generality in description characteristic of a constitution, .370. wide differences in nature of enumerated powers. 370-1, 373. can I'arlianient enlarge meaning ? 372, 373. " progressive interpretation," 372-3. spheres in whicli State an-ernor-General . and privileges of Parliament, 138a, 141, 316.— See Privileges, Parliament. executive power vested in the King, 158, 161. particular, granted to particular authorities, 159. conflict of State and federal, when within sec. 74, 240-1. of colonial legislatures, Sl-2, 243-72. — See Colonial Legislahires, Parlia- moit. of States, 325-44.— See Slater. responsibilities of Commonwealth limited by its, 347. State powers under Imperial Acts, 353. interpretation of the grant of power, 369, 470. — See Interpretation. of the Federal Statute, 329. the power of taxation. 374, 506. — See Taxation. the power as to trade and commerce, 375. — See Trade and Commerce. remissible excises, 376. — See Excise. preservation of integrity of State powers, 330, 354, 374, 377, 407, 513. doctrine of immunity of instrumentalities. —See Instrninentaliliei. nidirect, 485. Inter-State Commission, 573. — See Inter-State Co77imission. as to alteration of boundaries, &c., 595. — See Territorial Alterations. alteration of Constitution. — See Alteration of the Constitution. distribution of, in tiie (ioveriimcnt, 93, 292, 303. separation of, 94. — See Constitution, Separation. implied prohibition, arising from, 94. — See Implied. purpose of, in Commonwealth, 96-S, 303. express restraints on legislature in America, 94-5, 287. care necessary with American cases, 95. — See United States. legislative, executive, and judicial, in British Colonies, 95-6, 359. Courts and legislation, 95-6, 322, 357. executive and legislature, separation of, between, 98. executive, no inherent legislative power, 98. delegation of legislative power to executive, 98-101, 320. "statutory rules " of Commonweilth, classes of, lOOu. INDEX. 747 Powers — continued. Cabinet system, effect of, on separation of fmutions, 100. colonial legislatures not delegates, 101. — See Deltfjaiion. as to Coninioiiwealtli Parliiiinent, IDI, '27"2. juilicial, as afiected by legislature and executive, 101, 199, 208-9, .S08, ,321. — See Judicial Power. as to what powers can be committed to the Courts, 102. — See Matters. preponderance of the Parliament, 102-4. as to Cabinet government, 103. — See Cabinet. amendment of Constitution, initiative in Parliament alone, 104. the States ; Constitution and, 32.5-3.')6. — See lleserixd, Stales. control of Commonwealth and State action, 357-405. — See Control. Commonwealth and State, relations of, 406-44. — See Commonwealth and Slate", In.>strumentaHtie^. subjects of the, of the Commonwealtii, 445 et seq. classification, 445-7. exclusive, paramount and concurrent powers, 445-6. express inclusion of power which would have been implied, 447. direct legislative powers, 448 el seq. indirect legislative powers, 448, 485-7. — See Huilwai/s, Ri-Jtrred Matters, New States, States. auxiliary and incidental powers, 276-9, 487-8. acquisition of property fi'om States for federal purposes, 487. — See Acquisition. " until Parliament otherwise provides," 79, 125, 488. matters incidental to execution of federal powers, 276, 438, 488. — See Execution, Incidental, Legislative Power. subjects of federal jurisdiction, 489-503. — See Constds, External Affairs, Federal Jnrisdictioi, Treaties, States. PKKAMniJ.;. 76, 85, 288, 6(t3. Prkkekknck — as to British Preference Tariff liill 1900, 1 1(». indications of, in voting excluded, 123. absence of, in trade, connnerce and revenue, 283, 2S7, 414, 516-7, 563. prevention of undue, in (-arriage, &c., 574, 5S3. as to preferential or differential duties in colonies, 25-6. PKEMtEKs' CoN'KERENCES, 614. — See Cotifereuce. overshadowed Federal Council, 30. resolutions as to federation at Hobart in 1895, 45. amendments to first Convention liill proposed at Melbourne, 1899, 50. as to appeal to Privy Council at, Melbourne, 1900, 54. of 1909, as to State labour conditions, financial relations, Ac, 486, 620. 748 INDEX. Prerogative, 84. — See Orotcu, Colonial Lef/i-slattires, Executive, Executive Power, Governor-General, Royal Asse?U. Prksumption — against case being within federal jurisdiction of Court (U.S.), 206. of validity of Acts, ;aid as to rebutting, 245-6, 383, 387. that legislature intended to act within powers, 385, 389. use of general words, 386. Prevention of industrial disputes, &c., 450, 451, 455, 579 et seq. Prime Minister, 168, 170, 172. Prisons, detention of Commonwealth offenders in State, 440. Private— international law, rules of as determining sphere of States' law and jurisdiction, 266. law and public law in England, 358. property, taking without due process of law (U.S.), 320-1. — See United States. rights, guarantees against interference with (U.S.), 313-4, 339. Privileges - and immunities, article as to, in the U.S. Cc^nstitution, 332. of the Parliament, 13Sa et seq, 316. as to the "rights and privileges'' of the Senate, 123. lex et cousuetudo Parliamenti and Colonial Legislatures, 138a. what powers such Legislatures liave, 138a. as to punitive action for contempt, &c. , 138a. of Commonwealth Houses, 138a, b. jury service, exemption of senators and members from, 138b. as to documents published under authority of a House, 138b. investigation of breach of, by Legislature, a judicial duty, 308. procedure, 13Sb et seq. rules and orders for conduct of business, &c., 138b. standing orders, 138b. lapsed bills, l.SSc. regulation of debates and closure, 13Sc. in regard to legislation, 138c. as to Royal assent, 138c. as to money bill, &c., 13Sc, D. Privy Council, 53-5. — See Appellate Jurisdiction, Federal Jurisdiction, Crown. and the power of disallowing Colonial Acts, 91, 424. — See Crown. IXDEX. 749 Privy (Jouscii.— coiifinued. and High Court, conflicts in interpretation of Coostitution, 91, 286-40, 427-8, 520. in England and in Canada, composition of, 166. what kind of matters referred to by King, 209, 368.— See Control. constitutional cases from Canada, 368. advantages and disadvantages of Australian appeals to, 34, 220 et aeq., 235. High Court nia}^ hear certain appeals which lay to, 221-2, 223-5, 227. appeals on certain constitutional questions on certificate of High Court, 222, 2.34 el seq. when High Court may certify, 222, 234 et seq., 427. as to whether a case is sucli a constitutional one, 240-1. as to meaning of appeals from the " Supreme Court of a State " to, 226-7. as to meaning of "an appeal lies to the Queen-in-Council," 228. as to appeal to, notwithstanding jurisdiction of High Court, 229, 238. in Canada, 229. inconveniences of alternative appeals, 229, 238. right of appeal from State Court to, how governed, 230, 384-5. Judiciary Act and right under Order in Council, 230- J. special leave to appeal to, 222-33, — See Appellate Jurisdiction. appeals as of right, 226, 232. in criminal cases, 231. ordinary Court of final appeal in Colonial cases, 228. High Court guided by practice of, in granting special leave, 231-2. as to power of Colonial Legislature to afTeci right of appeal by special leave to, 232 3. Commonwealtli Bills limiting matters in whicli leave may be asked to be reserved, 111, 233. from High Court to, 233. — See Appellate Jjirisdiclioii. basis of final authority of decisions of, 238. as to naturalization and aliens in Canada, 463. as to die validity of money bills, &c., 246. us to Canadian Parliament and "general legislation," 2So. appeal to, as a constitutional check on Colonial legislation, 359. Procedure— in cases against the Crown, in Commonwealth and States, 164, 495. 496. on " proposed laws," directory ; on '' laws," mandatory, 246. service out of jurisdiction, &c., 4S1-2. as to meaning of laws "conferring rights to proceed against Common- wealth or State," 497-8. 750 INDEX. PROCKEDiNtiS. — See Federal Jtirisdiction, Judicial Power, " matter " describes any, competently brought before Court of liiw, 208. in determinations of bodies, not Courts, .306. in Executive inquiries, &c., 310-8. " other than a proceeding for an oflfence," &c., 312. in Colonial petitions of right, actions against Crown, &e., 164,495. in which Commonwealth and a State are dispntants, 497, 499. Pkocess. — See Due Proce'. advice of Ministers, 108-11. reservation of laws limiting matters on which special leave to appeal may be asked, for, 111, 222-3, 233. validity of certain Bills not shown to iiave been reserved for, 244. alteration of Constitution, bills for to be presented to Governor- General for, 247, 601-2. Commission — in 1870 as to best means to accomplish federal utiion, 26-7. as to inquisitorial powers of, 101-2. inquiries by and the judicial power, 309-11. Instructions, 329, .346, Appendix B. mode of exercise of prerogative under, and responsible govern- ment, 86, .300-1. and the Royal assent to Commonwealth Bills, 108-10. . executive power, and, 300-1. Visit, expenditure in connection with, 147. Rules, 99, 100. power of executive to make, for administration of statutes, 99, 100. " statutory rules " of Commonwealth, 100. of Court, power of .Justices of Higli Court to make, 102. Salary — of Governor-General, 160. 526. of Ministers of State, 128, 168, 526. of public servants, 191. of Justices and Judges, 200, 203-5. State taxation of federal salaries, 2.3S, 423 f.t seq., 426-7, 502, Addenda. — See Instrumeiitalides. federal taxation of State salaries, 423. Sale — State regulation of sale of patented article, 339-40. of liquor, proliil)ition of, 380. Saving of State laws, 411-2. — See Commonwealth and Stales. Seal— judicial notice of .State, 481. breaking Customs', on goods on high seas, 281. — See Cti^lom>t. 760 INDEX. Seat of Government — under Home Affairs Department, 173. " resulting power " to build a presidential mansion, &e. (U.S.), 276. principal seat of Higii Court at, 199. principal civil administration of Defence Department at, 178. probable that Parliament cannot convert, into a State, 593. pre-federation disputes as to, 590. tiie Dalgety site, 590-1. Yass-Canberra district, 591. Acts, as to, 591-2. mode of government of the area, 592. exclusive legislative power as to, 75, 289, 592, 593. Second Chambers, 613.— See Constitution, Senate. colonial legislative councils and the Senate, 139. other and the Senate, 140. Ministers and, 144-5. Cabinet government in the Commonwealth and the Senate, 151. dissolution of, 155. joint sittings, 156. Secretary of State — reply to Wentworth's Memorial for a General Assembly, 22. despatch as to aim and object of Commonwealth, 72. fiats for petitions of right for claims against colonial Executives, 165, 496. Self-Governing Colony. — See Colonial Legislature!^. Commonwealth a, for purposes of Colonial Boundaries Act, 76. legislature and people in, 82, 95, 101, 248. King expresses juristic personality of, 87. as to assumption of judicial powers by legislature in, 96. form of enacting legislation in, 105. control of naval and military forces in, 175-7. — See Defence. powers conferred on colonial legislature, nature of, 249, 251, 271. views of Higinbotiiam C.J. as to responsible government, 3()()-l. State and Commonwealth, and question of "channel of communica- tions," 349. Senate, 316. — See Constitution, Elections and Electors, Parliament, Privi- leges, Senators. Cabinet Government and the constitution, &c. of, S3, 140, 145, 151-3, 614. number of Senators, 112, 118, 119. repetition of requests for amendment of monej' bills, 148. part of Parliament, 105. it stands for the federal principle, 111, 116 7, 151. INDEX. 761 Senate — continued. equal representation of original States, 111, 119. each State one electorate, 1 1-. wnitary in action, though federal in Constitution, 11"2. quorum, ir2. "perpetual existence," except in event of deatllocks, ir2. rotation, 112, 113. alteration of Constitution as to term of Senators, 1 13, 606, 664. direct choice of Senators by people of States, 113, 117. casual vacancy, 114-5, 156. difficulties over South Australian elections of 1906, 114-5. uniform method of electing Senators, 115. no scheme of " proportionate representation," 115. time and place of elections, power of State Parliament, 115. method of choosing Senators, power of State Parliament, 115. conduct of elections, 115-6. issue of writs for, 116, 404, 4.39. president, election, removal, resignation, &c., of, 116, 1'23. resignation and vacation of seat, 116, (juaiitications of electors and Senators, 113, 1'24, 127-39. relations of the two Houses, 139 e( seq. Senate and other Second Ciiambers compared, 139, 140. money bills, provisions as to 140-153. — See Money Bilh. deadlocks, provisions as to, 154-7, 6(X).— See Demllock^. bills, as to practice of printing certain words in italics in, 147. non-re3urrent items, inclusion of in Supply Bills, 147. amendment of Sugar Bounty Bill by, discussion on, 149. suggestions. — See Reqaentn. .•Senators, 111, 113, 115, 116, 124.— Sec Eleclionn and Elerlo)-<, Members, Senate. qualihcation and disqualifications, 113, 127-.30. eligibility of women as, l.'iOl. oath of allegiance or iittirmation, 137. remuneration, 137-S, 526. receipt of compensation for services before department, 12S, 277. iSepakation — colonies formed liy, from others, S. of territory from State by consent, and fornuilion of new State, 593. of powers, 94, 158-9, 310, .321, 360.— See Common wealth. Powers. .Service out ok Juri.sdiction, 481-4.— See Service and Execution oj Process. under Federal Council Act, 476-7. 762 INDEX. Service and Execution' of Process.— See Slate Laws, Records Recog- nition. civil and criminal process, and judgments of State Courts, 478. as to validity ot some of tiie provisions, 481. process other than the execution of judgments, 481. service of writs in other States, 481. judgments in such cases, force and effect of, 481. jurisdiction of a Court not enlarged, 481. service of other process of Courts of record, 482. offences, subptenas, 482. warrants for offences, or for maintenance of wife or children, 482. procedure on apprehension, 482. comparison with Fugitive Offenders Act, 482-3. writ of attachment for contempt, &c., 483. not attachment in nature of execution of final judgments, 483. enforcement of judgments, 483. mesne process, but not process of execution, 483. registration of judgment in other State and then execution by its laws, 483. does Act apply to all judgments of State Courts ? 483-4. comparison witli P]nglish Judgments Extension Act, 484. Western Australian judgment in N.S. W., 484. Victorian County Court judgment against non-resident, 484. effect of registration of certificate of judgment, 484-5. as basis of fraudulent debtor's summons, 484-5. or petition in insolvenc}', 484-5. ''execution " narrower word than " enforcement," 485. Services — members or senators taking fees, &c. , for, 128. Bills for appropriation of fees for services thereunder, 141. proposed laws appropriating revenue &c., for the ordinary annual services of the Government, 141-2, 143. determinations of fact on, by executive officers, 320. administrative, transferred to Commonwealth, 448. miscellaneous, under Commonwealth legislative powei', 449-60. Sessions — of Federal Convention, 47-S. of Parliament, at least once a j'ear, 107. Shipping. — See Xavigation and Shipping. INDEX. 763 SoCKCE. — See Control, Australian Lan's. of federal jurisdiction of State Courts, •21,'5-4. of executive power iu colonies, 299. of powers of Governor-tJenenil, 107. South Africa, "270. 35.S. supervisiou of Provincial Goveriiiiieuts in, 70, 87. Provincial Administrators do not represent the King, 87. as to protection of Judiciary, 203. South Australia, 495«. laws of, before federation, 14-."). disputed Senate elections in, 114-3. Compact of 1857, 142. dissolution of second cliamher, 1.5.3-6. as to objections against the validity of Acts in, 201-2. channel of communications with Imperial authorities, 347. agreements as to Murray, and disputed boundary line, 356. as to the Northern Territory, 590, 596. as to annexation of territory to, 595. Sl'KAKER, 123-4, 13Sc. SrECTAL La\v.s, 462-3, 464. — See Naturalization and Aliens. Spkcial Lkave. — See Ajipdlate Jurisdiction, Privy Council. prerogative to grant, and Court of Disputed Returns, &c. , 137, 224. appeal by, to Higii Court from Stale Court, 218, 224, 225, 226, 229, 231, 2.32, appeal to Privy Council by, 218, 222, 229, 231. 427. appeals in criminal cases, 231. "Spkcial Reasons," 222, 236. — See Appellate Jurisdiction. State — Acts. — See Stale Laws. lianking, 469. — See Bankinij. Commerce and federal powers, 378-9, 384. — And see Commerce Power, Trade and Commerce. Constitutions. — See Colonial Leijislaturi"^, Constitution, Slalfx. of States formed by unions of States, nature of, 77-8. continuance of, 70, 326. jiolice power and, 3.39. Crowi\ and, 346. Courts, 210 et seq.. 221 el aeq, 244, .360, 3S4-5, 427.— See Appellate Jurisdiction, Australian Lawf, Courts, Fednrul Jurisdiction. and the Constitution, 66-7, 79, 212, 242, 414. —See Constitution, Slates. 764 INDEX. State — continued. the Crown and, 87. appeals from, in constitutional matters, 91. State judiciary and the Constitution, 198. removal of constitutional causes from, into High Court, 219. "Supreme Court of a State," meaning of, '225. jurisdiction of, as to offence in Post Office, 290. and protection of federal officers, 299.— See Officers. jurisdiction as to wrongs and crimes after federation, .S99. as to mandamus against federal officer, and other process of, 400, 401, 499. — See Ezecntiee Power, Officers. incidence of Commonwealth power upon, 418, 419-20. use of, by Federal Government, 440. recognition of records, service and execution of process, &c., 475 et seq. as to jurisdiction of federal Court on appeal from, 502. Debts, 525, 527, 534, 538 et seq., 606, 666.— See Financial Relations. Documents, 683 et seq. Executive, 296-7, 300-1. subordinate to State Parliament. 79. references to, in State Constitutions, 295-6. application for protection against domestic violence, 297, 338, 448. power of Commonwealtii Judicature over official acts, 402, 433. as to federal power to commit authority to, 444. Government — and the Constitution, 79. as to enforcing duties upon, 403-4. as to liability for tort, &c., 416-8. Governor, 108, 116, 160, 161, 175, 299-301, 327.30, 346, 439. and the Crown, 86, 105, 346. position since federation, 327-30, 346. Letters Patent and Instructions, ,329, 346, Appendix B. no longer Commander-in-Chief, 329. pardoning power, 329-30. as to sanction for duties of, under Constitution, 404. mandamus does not lie to, 405, 438-9. powers as to referenda, 606. Industrial laws and the Arbitration Court, 456-S.— See Conciliation and Arhilration, Wages Boards. Instrumentalities, how far exempt from federal control, 423, 429, 430 et seq., 520. — See Instrumentalities. Insurance, 469. — See Insurance. INDEX. 765 State — continued. Laws ami Records Recognition Act, 480-1.— See Records Recognition, State Laws. Officers. — See Officers. power of Commonwealtli Jiulicature over acts of, 40'2-4, 433.— See Executive Power. federal taxation of salaries of, 23S, 423, 429. use of, by Federal Government, 438, 440. Parliaments, 156, 225, 291, 330-4. — See Colonial Legislatures, Privileges, Stales. plenary powers, 79-80. — See Plenary Powers. depositaries of residuary powers, 206, 330. Crown, part of, 85. transfer of powers of, to Federal Parliament, 103.— See Reserved. powers as to Senate, 114, 115. as to eligibility of members of, for Federal Parliament, 129. as to appeals from State Courts to High Court, 223. independence of, in Australia, 342, supremacy of Commonwealth law, and the powers of, 407. delegation of federal powers to, 440 et fse.q. federal powers exerciseable with consent, &c., of, 448, 485. surrender of territory, &c., with consent of, 588, 589-90, 593, 594. what legislative powers e.xpressly excluded, 330. implied restraints.— See Implied, State Powers. Powers, 374, 379.— See Commonwealth and States, Ultra Vires. preservation of integrity of, 374, 377, 386. as to implied restraints upon, 330, 425, 427, 429-30.— See Boun- daries, Implied, Instrumentalities, Trade and Commerce. as to reserved powers of States, 206, 330, 348, 354, 375, 376, 407, 423, 513.— See Reserved. Premiers, as to Conferences of, 356.— See Premiers' Conferences. Railways, 448, 485, 577 et seq.—See Railways. Rights, 78. to " surplus revenue," &c., 526, 532 et seq. Taxation. — See Instrumentalities, States, Ta.iation. Wages boards and Federal Arbitration Court. 408. 456, 620, Addenda. STATii Laws, 116.— See Control, State, Stales. recognition and effectuation of, legislative power as to, 475-85. purpose of, 475-6. limited power of " local and territorial legislatures," 476. difficulties in Australia, 476. Fugitive Offenders Act, kc, 476. 766 INDEX. State IjAwy,— continued. Federal Council powers and Acts in pursuance thereof, 477. Imperial Acts aiding the colonial Courts, &c., 477. local State Acts as to judicial notice, i. police power belongs primarily to, ;^:{8, ;^S0. conflicts between Commonwealth and State laws, 357 et seq., 379, 407, 426.— See Control, State Laws. internal commerce of, and Federal Employern Liability Act (U.S.), 390. discrimination between produce of diflerent, .393. spheres of (commonwealth and, and power as to taxation, :w3-6. — See Conimonwealtli and States, Reserved, Taxation, loais utandi of Attorney-General in constitutional cases, 395-7. Commonwealth Judicature and official acts of officers, 402. relations of Commonwealth and, 406, et seq. — See Commoniren/lh and States. are the States subjects of the Commonwealth, 413-4. Constitution, &c., binding on, 66-7, 80, 212, 242, 414. are justiciable jiersono' witliin judicial power, 414. juristic entities bound by Commonwealth laws in certain matters, 433. immunity of instrumentalities of, 430. duties on imports by, 433, 519. — See Instrmnentalities. recognition of State laws, &c., 477 et «eg.— See State Laws. indirect Commonwealth powers, dependent on consent of, 4S5-6. — See Xbw Slatei, /iuilicar/s, Rejerrnl Matters. as to settlement of internal industrial dispute to prevent exteusiou, 455-6. service of process, enforcement of judgments, kc, 4S1 et scij. trade and commerce with other countries and among the. 467, 471-2, 549 et xeq., 577. — See Trade and Commerce. navigation luws and State ships, &c., 560. territorial alterations with consent of, 4S(), 588, 593, 594, 602, 605. without such consent, 592.— See Acquisition. new States, 486, i593.— See Xew >talts. alteration of boundaries under Imperial Acts, &c., 7l), .V.t4-6. "Original Slates,' 52, 60.S. irrigation, 499, 563. 768 INDEX. States — continued. Constitution and powers, 3'25-44. — See State Powers, Ultra Virefi. constituent part of federal Government, 325. autonomy of States in the Constitution, 3'26-7. State Governors, 327-30. — See State Governor. State Parlianieats, 330-4-. — See State Parliamtnts. discrimination by State against residents in other States, 287, 331-4, 342. diflference from American provisions, 331-2. "privileges and immunities" article (U.S.), 332. "residence" the foundation of the section, 333, 334. absentees, commercial travellers, non-resident beneficiaries, &c., 3.33. State dividing residents into different classes, 333-4. taxation by, 330, 334-7, 507, 510. in United States, territorial limitations, &c., 334-5, 336. intangible property, 335. colonial Parliaments, no similar limitations on, 335. incidence of taxation, 335-6. as to companies, 336. as to enforcing State revenue laws, 337. "police power" of, 337-44. — See Police Poiuer. the status of the, 295-7, 345-56. communications, &c., with Imperial Government, 295-6, 345, 346-7. Crown and State Constitutions, 346. despatch as to communications on external affairs, &c., 347. criticism thereof, 347-9. Commonwealth responsibilities limited by its powers, 347. Commonwealth no supervisory authority over States, 349. "channel of communication," disputes as to, 349. the " Vondel" Case, 349. protest of State Governments, 349. much friction as to, 350. practice now established, 350. as to recommendations to Crown for honours, 350. Imperial Conferences, and representation of the, 350-3. as to matters not within " exclusive power," 351. when subjects within exclusive power of States, 351-2. within concurrent power, and examples thereof, 351, 352. State powers under Imperial Acts, 353. doctrine of merger of States in Commonwealth rejected, 353. INDEX. 769 States — continued. FufjUive OpMderx Art 1881, 2SI, 270, 35:]. Natal wiinant for apprehension of rlefeiulaiit in Victoria, 353-4. *' British possession," " central legislature," "part of the British Dominions," 3r)3--l. test of application found in tlie distribution of powers, 354. other Acts and their applicability to States, 354, 355. Colonial Boundaries Act, powers under recalled, 355. powers granted after establishment of Coniir.onwealth, 355. test of applicability to States, 355. as to agreements with other States, &c., 356. as to treaties, &c., with foreign powers, 356. power of Commonwealth over "external affairs," 350, 489* Murray River waters, disputed boundary question, &c., 356. conferences of State Premiers and significance thereof, 356, 614. control of Commonwealth and State action, 357-405. — See Control. federal jurisdiction as to matters between, 208, 212, 215. 491. between residents of different States, 208, 212, 491. comparison with United States, 492-4. l)()innlaries, rivers, extradition, &c., 492-4, as to performance of obligation by Slates, 493, 494. riparian States, 4t)4, 498, 499. suits between Slates, exclusive jurisdiction of Higii Court, 494. matters between State and resident of another Stale, 208, 491, 494-8. petition of rigiit does not extend to torts, 495. statutory provisions in States for proceedings against Crown, kv.., 495. where claim under State laws, cognizable by Higii Court, 495-6. as to whether colonial executive can bar sucli claims, 496. as to fiat of Secretary of State, 105, 49('). as to immunity of Stale from suit save by its consent (U.S.), 496-7. power of rariianient, 497. right to proceed against Connnonwflaltli or Slates, 497-8. proceedings against States, 403, 414. 417-'^. as to suing for tort, 498. Acts relating to claims against Commonwealth, 497-8. matters between State and Slate, 498-9. CI 770 INDEX. States — conliuiicd. matters in which Coiunioiiwealth is a party, 499. inclmle proceedings between Coninionwealth and State, 499. as to financial rehitions between Stale and (Commonwealth, 499. claim under different State laws, 208, 416, 503. claims against Government, State Acts relating to, 495)J. ST.4TISTICS, lis, 119, 173, 179, 450. Status, 845-56. — See Slates. law of persons, or, 470. Statutes, 214. — See Acts, Assent, Constitution, Control, Legislative. Power, Rtpeal, Slate Laivs. Imperial, applicable to Australia, 1 el s^q. — See Australian Laws. as to exemption of Crown where not mentioned in, 89, 90. enacting clauses of, 105-6. assent, withholding assent, disallowance, t^c, 110. — See Crown, Colonial Lei/islatures, Disallowance, Oovernor-General. power of Governor-General by statute, and the Letters Patent, 162, 165 regulation of public service by, 177, 194. validity of, 95-6, 243 et seq., 361, 369, 379, 383.— See Interpretation, Ultra Vi7-es. supremacy of Commonwealth law, 407. judicial notice of, 477 et seq. Imperial, as to alterations of boundaries, &c., 594-6. "statutory rules" of the Commonwealth, 100. State Acts as to claims against Government, 495?i. Strikes, 556. Subject, 127. of taxation, dealing with more than one, in money bills, 142, 144. of King resident in State, as to disabilities, &c. in other States, 287, 331 et seq., 3-12. "subject to this Constitution," powers of Governor-General, 108-9, 161. are the States subjects of the Commonwealtli ? 413-4. subjects of legislative power of Commonwealth, 445 et seq. subjects of federal jurisdiction, 489-503. Sugar Bounty Bill, discussion on, 149. Suggestions. —See Money Bills, Bequest. Suits. — See Federal Jurisdiction, States. against Commonwealth or other States, State Court jurisdiction excluded, 212. abstract questions on constitutional matters, 399. • INDEX. 771 Suits — contimied. federal rifjht to sue, a " resulting power," 276. in State Courts for federal offences, torts, &c., 399. Summary Jurisdiction, 218. — See Justices. Supply Bills, 145-7, 522-.S.— See Money Bills. Supremacy — of Parliament in England, 359. of federal action, and tlu; State Courts (U.S.)i 399. of Commonwealth law, 406-12— See Commonwealth and Stales. SuPRKME Court— See Courts, Stale Courts. of a State, meaning of, 225-6. consideration of validity of colonial Acts by, 360. of State and sec. .39 of Judiciary Act, 384-5. appeal direct to Privy Council in income tax case, 427. Surplus Revenue, 524 el seq.—See Financial Bdations. Surrender — of territory of State to Commonwealih, 75, 2'Jl, 588, 589-90, 591-2, 594, 604. — See Seat of Government, Territories, Territorial Alterations. Switzerland — conflict between law of canton and federal law, 357-8. alterations of constitution in, 599. Sydney, 30, 48. Australasian Convention 18S3, 30. second session of Federal Convention 1897, 48. as to the seat of Government, 49, 51, 590, "Tacki.nc," 144. Tarufs, 24-5, 02, 63. — See Customs, Excise, Federation, Financial JRelations. Tasmania, 11-2, 417, 495«. laws of, before federation, 11-2. as to financial relations with Commonwcaltii, 5.30, 539 et .seq. Taxation. — See Oustoma, Excise. bills, 107, 138D, 141 et seq., 144, 247, 521.— See Mo7inj Hills. debate on Sugar Bounty Bill, 14'.i. "law imposing taxation," 150-1, 247. as to penal provisions in " lu.icliincry " Act, 1.'>0-1. and Judge's salaries, 256-7. as to preference to State or part thereof, 2SG-7, 444, 510, 50.3. discriminating death duties, absentee taxes, &c., in States, 3,33. 772 INDEX. Taxation —continued. by States, 330, 333, 334-7, 436.— See States. land tax, as to validity of, 381. of federal instrumentalities by State, 422. — See InstrtmitntabitieH. of federal officers' salaries, 236, 426 et seq., 502. of State instrumentalities by federal government, 423, 429 et seq, 520. ciistoms duties on State imports, 241, 433 et seq., 519. — See Railways. legislative power as to, 370, 374-5, 505, 516. granted separately, and not as an incidental power, 505. definitions of a tax, 505. legislative power, plenary within subject matter, 281, 370, 505, 512, 513. substance, not form, of legislation considered, 506, 513. nature and extent of taxing power, 506. distinguished from confiscation, eminent domain, police power, charges, licences, &c. , 506-7. additional duty for evasion not original imposition of tax, 507-8. taxes really incidental to currency and coinage power, 508. or foreign commerce power, 508. Courts not concerned with motive or indirect effect of taxing Acts, 435-7, 508-9, 512. liquor trade, protective duties, &c., 508, 513. as to objects not entrusted to Federal Government, 509, 513. what the power embraces, 510. as to State's powers of taxation, how affected, 510-1. federal taxation for federal purposes, 446, 511. concurrent and independent power, 4(J7, 446, 514. •' new protection " and the Excise Tarif Act 1906, 511 e' seq. — See Excise. as to effect on State powers, 511-2, 513. decision of majority of Court holding Act invalid, 513. federal nature of Constitution considered, 513. inroad into reserved State powers, 374-5, 513. — See Reserved. true nature of Act to be ascertained, 513-4. power as to customs and excise, exclusive, 3.30, 514. — See Customs. " duties of customs," what are, 514. freedom of inter-State commerce from, 374-5, 436, 514, 521. — See Covi- merce Power, Trade and Commerce. charges. State inspection laws, &c., 514-5. "duties of excise," what are, 515. as to licence fees on occupations, 515-6. duties of excise regulating an occupation not, 516. INDEX. 773 Taxation— co?i70. TEitKiToHiAL. — See Bonnddfies, E.vtra-lc.irilorial, Fixhiivins. Commonwealth, a territorial community, 71, 72, 74. territory of every State is Commonwealtli territory, 74. including " territorial waters," 74. colonial legislatures, local and territmial legislatures, 259-72, 476. as to (^omnionwcalt li, 2S()-.'?. as to cession or annexation of territory, 271, ■/ U, in what way Slate taxing power limited territorially, 3.%. as to service out of jmisdiction, 476 tl hcq. as to local laws applicable to part only of Commonwealth, 2S.3. 774 INDEX. Territorial Alterations. — See Boundaries, Territorial. new States aucl territories, 69, 486, 587. — See New States, Territories. pre-federatiou movements for separation, &c., 587-8. provisions for surrender of territories to Commonwealth, 7"), 291, 588. tor re-adjustment of State boundaries, 588. for erection of new States, 588. — See Neiu States. consent of State necessary, 588. as to New Zealand, 588. seat of Government, 590. — See Seat of Government. alterations of limiLs of States, 486, 588, 59.3-6. power to increase, diminish or alter limits of State, 594. when consent of vState Parliament and electors necessary, 594. amendment of Constitution, 594. pre-federation Statutes and Letters I'atent as to l)ound:uies, &c., 594-6. power of N.S. W. and Victoria as to Murray boundary line, 595. Colonial Boundarie-i Act 1890, 595.— See Colonial Boundaries. power of Crown to alter boundaries of any colony, 595. not of self-governin£( colony except on its petition, 595. does not apply to any State of Commonwealth, 595. effect of Constitution on the other powers, 595-6. as to boundar}- disputes between Victoria and S.A., 596. Territories, 592, 593. — See Acquisition, Seat of Go\;ernment, Territorial Alterations. surrender of, to Connnonwealth, 75, 291, 486. 588. of existing State to remain intact except with State's consent, 588, 594. safeguarded even against amendment of Constitution, 594. dependent communities, 589. power to admit New Zealand as New State, 589. Commonwealth may accept territory placed under it by Crown, 283 589. and make laws for it, 291, 589. how it may be governed, 589. when it becomes a "part of tlie Commonwealth," 75, 589. British New Guinea and the Papna Art 1905, 589. as to Norfolk Island, 589. effect of acquisition of, within Conmionwealth, 589-90. surrender by State Parliament and acceptance by Commonwealth 291, 486, 589-90. as to when consent of State electors neces-sary, 594. Northern Territory, acceptance of from South Australia, 590. INDEX. 775 Territories — conthnitd. establishiiieiit of new States, 486, 589, 593.— See Xeji- States. representation in Parliament of, 291, 592-.3. "territory of the Commonwealth," 74-5. — See Commonwealth. Test Cases, 363. — And see Advisory Opinions, Ultra Virei. Tort — as to action for, committed abroad, '209. as to claims against a State in contract or in. 416, 495, 498. as to agents of State, 417. as to petitions of right in England and States, 164-5. 495. as to power to define liability of Commonwealth for, 498. Trade. — See Corporations, Federation. provision against preference in trade, commerce and revenne, 283, 286-7, 444, 503.— See Taxation. finance and, 504-86. — See Commerce Power, Financial Relations. Inter- State Commiavion, Public Money, Hailways, Taxation. Trade and Commerce. and commerce with other countries and among tiie States, 549 et seq., 560. — See Commerce Power, Navir/ation and Skippintj, Inter- Slate Commimon, Railways, Trade and Coynmerce. freedom of inter-State trade and commerce, 330, 342, 344, 374-6, 380, 393, .'lU, 521, 564, 584.— See Commerce Power, Trade and Commerce. " trading " and " navigating," 560. taxation and inter-State commerce, 374-5. remissible excises and inter-State commerce, 376, 382, 511 et seq. restraint of, 471. — See Restraint. Trade and Commekce, 283, 340, 374-6. 380, 384, 444, 462, 467, 468, 549. — See Commerce Power, Financial Rthilions, Taxation. relations of Congress and American States, 442. — Sec United States. freedom of inter-Slate commerce, 330, 342, 393, 514. 521, 564, 584.— See Commtrcr Power, Taxation, Trad' . and revenue, provision against, preference in, 283, 280 7, 4 14, .")().'>. what is, 5.")0-l, 5(i9. and the police power (U.S.), 340, 343, .380. power to regulate as distinguished from power to prolul)il. 280i(. Conciliution and .Arhittation Act and inter-Sliitc, 391. inter-State, and the immunity of instrumentalities, 429. 436. 442. subjects implietl in the power as to, but expressly mentioned, 447. Customs dulii's and objects thereof, 549. 776 INDEX. Tbadk and Cdmmkkck — continued. Commonwealth power, extent of, 28(3, 467, 471-2, 577. limited to foreign and inter-State, 374-6, 549. interpretation of, 549-50. "commerce power," 550 et seq. — See Co7mnerce Power. " commerce," meaning of, 550. distinguished from production, 550-1. as to collateral incidents, 551. as to insiuaiice, 551. commerce "with other countries," 552, " among the States," 552. transportation, 552-3. as to when traffic commences and terminates, 553. intoxicating liquids. Commonwealth Constitution as to, 553. means and instrumentalities whereby carried on included, 553-4. "instruments of commerce " included, 554, 582. railways and shipping, 316, 391, 554-5, 560, 580, 582, 583. as to Employers' Liability Act (U.S.), 390-1, 554-5. as to conditions of employment in Commonwealth, 555. as to forbidding specific persons from employment in inter- State traffic, 391, 5.)5. collateral incidents not included, 551, 554, 555. " trusts and combinations," power over, 471-3, 555 et seq, doctrine of collateral incidents and, 555. commerce power extends to the protection of commerce, 555-6. and to removal of obstructions to commerce, 556. strikes, &c., on inter-State railroads, &c., 556. agreements not to compete, 471, 556-7. Northern Securitifi Co. v. U.S., 5.57-9. " holding corporation," 557- acquisition of stock of competing railroad companies, 557. railways are instrumentalities of commerce, 558. combinations among inter-State carrying companies, 559. application of American cases to Australia, 550, 559 — And see United States. as to railways under Commonwealtli Constitution, 386, 391, 560, 577, 5S0-.1. — See Raibcays. navigation and shipping, 560-2. — See Navigation and Shipping. powers of the Inter-State Commission as to, 174, 573-4. exclusive power of Congress, foundation of, 410. among the States, State Acts, affecting (U.S.), 380, 567 et seq. inter-State and the Union Label, 375. — See Ultra Vii-es. domestic corporations, 375-6, 469-73. — See Corporations. INDEX. / / / Trade Marks, 174, 372, 384, 410. legislative power as to, 459. "workers' trade mark," provisions as to invalid, 371 <:t acq., 384, 392, 394-7,460. — See IiUerprttutioii, Ultra Vires. as to Commonwealtli trade mark, 460. Transkkr — of Departments to Commonwealtli, 171, 290, 296, 329, 444, 446, 448-9. 526. property, &c., of transferred Departments, 289, 526. Treasury. — See Attdil, Public Moni-.y. functions, &c., of Department of, 173, 178, 179, 181, 185, 186. Treaties. — A ddenda. plea for a colonial " treaty-making power,"' 27-8. as to duty of Governor-General when Bills conflict with, 1 10. federal jurisdiction as to matters arising under, 208, 489, 490. as to the powers of State Courts, 212. powers which concern, and the judicial power (U.S.), 207. exclusive jurisdiction of High Court, 215, 217-8, 490. no part of Commonwealtli Kxecutive power to make, .301. communications from Colonial Office, &c., as to, 29.'), 347, 349. as to compacts, (fee, witli foreign powers, 356. as to Executive determination of claims arising out of (U.S.), 318. Commonwealth legislative power as to external affairs, 461-2, 489. 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