KU A93 1913 J U Mi a i Bi i :' l «fir>aUMitaaBp« iMWiiwMWMtwiiMi i i iii iiiiiiiiii i iiii iiiMn ii w i miiMn i r i t i i iif i mmwi i ai ii i iii ir ■ii ii i i B ii i i> i i iiiii nm i i iii »wv i ii i>i" Mw i Pi i'r i iii (iii iiiii ii iii HMMi 'i iii ii i i CoHnnoiiwealtli of : Aiistralia iiU »L i i i iuiiLiiM i il » »»iin i iximi i i ii »i i ri i ij i>i r i»!iii i ) iii iii »r i C[j,i, »i iai»»j>»i» ipii i«j.i i iuLi » irraB ! iij( w i!P «Wi« ii mKL» !i mijiMMMiiiim i ii ii tiiiii"»i)>' i M'l ii i ii i lB Ma |iB iiM i iii BigMt^^ (fnrnrll ffiam Srlinnl Sthrarg KH 2.2 19i"3'"' """"'"">' "-'Tary _ 3 1924 024 35T'''S" WW \ ^ Cornell University '^Ujj Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024351235 THE Commonwealth of Australia Constitution Act (63 & 64 Vic. c. 12). COMMONWEALTH STATUTES OF PRACTICAL UTILITY. THE Commonwealth of Australia Constitution Act (63 & 64 Vic. c. 12), TOGETHER WITH INTRODUCTION; TABLE OF STATUTES; TABLE OF CASES; DIGEST OF CASES AND INDEX. BY H. B. BIGNOLD, Barrister- at' Law. Editor of Australasian Dental Jurisprudence ; Summary Ofifenoes (N.S.W.) ; Police Offences and Vagrancy Acts (N.S. W.) ; Friendly Societies Acts (N.S.W.) ; Australian Banking Manual ; Associate Editor Wills, Probate & Administration Act, 1898 (N.8.W.). THE LAW BOOK COMPANY OF AUSTRALASIA, LIMITED, 80 Elizabeth Street. 1913. /^// 1o> TABLE OF STATUTES JUDICIALLY NOTICED In Cases under Commonwealth Constitution Act : TOGKTHBR WITH TABLE OF LEGISLATION^ UNDER THAT ACT. PAGE Administration, 1903 (W.A.), 1903 No. 13, s. 86 . . . . 86 Australian Industries Preservation, 1906 No. 9, ss. 4, 5, 7, ^ 8, 15b 30 1908 No. 5 .. 30 Civil Service (N.S.W.), 48 Vic. No. 21, ss. 2, 8, 48, 55 . . 72 Claims against the Commonwealth, 1902 No. 21, ss. 3, 6, 7 58 Coast Defence Appropriation, 1908 No. 19. . . . . . 70 Colonial Laws Validity, 1865, 28 & 29 Vic. c. 63, ss. 2, 3, 5 82 Commonwealth Audit, 1901 No. 4 . . 47 Commonwealth Conciliation and Arbitration, 1904 No. 13 2 ss. 2, 4, 6, 17, 18, 19, 23, 24, 28-31,40, 48.. .. 19 ss. 4, 19, 30, 38 ip) 39 ss. 4, 55, 58, 60, 65, 73 37 ss. 30, 31, 38 (/) (gr) 40 ss. 19 (6), 38 (m) 37 ss. 19, 38 (/), 38 (gr) 42 Commonwealth of Australia Constitution, 63 & 64 Vic. c. 12, a. 5 2, 39, 45, 84 8. 13 8, 8 s. 16 8, 8 s. 31 13 8. 44 17 8. 47 8, 8 *Tfae Table of Legislation under the Commonwealth of Australia Con- stitution Act is printed immediately after that Act in this list. iv. COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Commonwealth of AustraKa Constitution, 63 & 64 Vic. 12 — Continued. s. 51 i. . . . 19, 20, 22, 23, 30, 85 ii. . . .. 22,25,85 xviii. .. 20 xix. . 29 XX. . 30 xxvi. . 29 xxvii. . 32 xxix. . 33 XXX. . 29 xxxi. 35,36 XXXV. 37, 37, 38, 40, 40, 42 xxxix. .. 37,37,42,44,45 s. 52 ii. . . . . 47, 48, 49, 49, 84 s. 55 25, 5j s. 59 . . 51 s. 69 . . 55 s. 70 56 8. 71 . . 30, 40, 57, 58, 58, 89 8. 73 40, 44, 45, 49,58 ,58, 6 0, 60, 61, 61, 61, 62, 62, 69 8. 74 . . . . 44, 49, 58, 63, 63 8. 75 . . . . 40, 44, 65, 66, 69 8. 76 . . 23, 24 8. 77 . . ; 44,49,69 8. 80 . . '...'.. 30 8. 81 . . . . 70 s. 83 ..70 8. 84 55, 56, 72 s. 85 . . 84 s. 86 . . 49, 74, 85 8. 87 . . . 70 s. 89 . . . 56, 70, 78 8. 90 . . 25, 49, 74, 85 8. 92 . . 76, 77, 78 8. 93 . . 56, 70, 78 8. 94 70 8. 95 . . .76 s. 98 19, 23 8. 99 .. 25 s. 101 . . . . 19,30 TABLE OF STATUTES. Commonwealth of Australia Constitution, 63 & 64 Vic. c. 12 — Continued. s. 102 19 s. 104 19 s. 105 70 8. 106 48, 49, 82 s. 107 47, 48, 49 s. 108 33, 47, 48, 49, 84 s. 109 47, 48, 49 s. 113 77 s. 114 47, 59, 84, 85 s. 117 86,87 Commonwealth of Australia Constitution Act, 63 & 64 Vic. c. 12. Legislation under : — Acts Interpretation, 1901 No. 2, 1904 No. 1 . . . . 43 Amendments Incorporation, 1905 No. 13 . . . . 43 Appropriation . . . . . . . . . . 43, 70 Arbitration (Public Service), 1911 No. 11 36, 43, 69 Audit, 1901-1912 27, 42, 70, 71, 79 Australian Industries Preservation, 1906-1910 Australian Notes, 1910-1911 Bank Notes Tax, 1910 No. 14 Beer Excise, 1901-1912 BiUs of Exchange, 1909-1912 Bounties, 1907-1912 Census and Statistics, 1905 No. 15 . . Claims against the Commonwealth, 1902 No. 21 Coast Defence Appropriation, 1908 No. 19 Coinage, 1909 No. 6 Commerce (Trade Descriptions), 1905 No. 16 Commonwealth Bank, 1911 No. 18 . . Conciliation and 19, 67 28, 28 • . 25 24, 47 ■ ■ 29 27, 32 • • • 28 21 68, 69 . . 28 28 , , 19 . 27, 28, 55 Commonwealth 1904-1911 Commonwealth Electoral, 1902-1911 Arbitration, . . 36, 67, 89 7, 9, 10, 12, 13, 14, 18, 27, 42, 67, 68 Commonwealth Franchise, 1902 No. 8 10, 13, 14, 16, 32, 42 Commonwealth Inscribed Stock, 1911-1912 .. ..27 Commonwealth Public Service, 1902-1911 42, 43, 47, 55, 72 Commonwealth Salaries, 1907 No. 7 43 vi. COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Commonwealth of AustraUa Constitution Act, 63 & 64 Vic. c. 12, Legislation under — Continued. Commonwealth Workmen's Compensation, 1912 No. 29 47 Constitution Alteration (Senate Elections), 1907 No. 1 8, 91 Constitution Alteration (State Debts), 1910 No. 3 82, 91 Contract Immigrants, 1905 No. 19 . . . . 32, 36 Copyright, 1905 No. 25 29, 67, 68 Copyright, 1912 No. 20 29, 67, 68 Customs, 1901-1910 . . 19, 24, 47, 67, 68, 76, 79 Customs (Inter-State Accounts), 1910 No. 9 19, 76 Customs Tariff, 1902-1911 14,74 1906 No. 14 24 1908 No. 7 24 (South African Preference), 1906 No. 17 24 Defence, 1903-1912 28, 36, 47, 56, 67, 68, 87, 88 See also Coast Defence, Naval Defence, Naval Loan. Designs, 1906-1912 29, 67, 68 See also Patents, Trade Marks and Designs. Disputed Elections and Qualifications, 1907 No. 10 Distillation, 1901 No. 8 Electoral Validating, 1906 No. 12 Emigration, 1910 No. 26 Evidence, 1905 No. 4 . . Excise, 1901 No. 9 . . . . 24, 47, 67 Excise Procedure, 1908 No. 1 . . Excise (Sugar), 1910 No. 17 Excise Tariff, 1902 No. 11 1905 No. 24 1906 No. 16 1906 No. 20 1908 No. 8 Excise Tariff (Starch), 1908 No. 14 Extradition, 1903 No. 12 Governor-General's Residences, 1906 No High Commissioner, 1909 No. 22 High Court Procedure, 1903 No. 7 High Court Procedure (Amendment), 1903 No Immigration, 1901-1912 Inter-State Commission, 1912 No. 33 24, 7 47 . 12 . 32 . 43 68, 79 . 43 . 25 . 24 . 24 . 24 . 24 . 24 . 25 ,. 33 . 43 43,55 .. 43 13 .. 43 29, 32, 33 76,80 33, TABLE OF STATUTES. Commonwealth of Australia Constitution Act, 63 & 64 Vic. c. 12, Legislation under — CoMinued. Invalid and Old-Age Pensions, 1908-1912 . . 31, 32 Invalid and Old-Age Pensions Appropriation, 1908 No. 18, 1909 No. 2, 1910 No. 4, 1912 No. 16 . . 31 Judiciary, 1903-1912 43, 57, 59, 60, 67, 67, 68, 69, 69, 70, 76, 80, 88, 89 Jury Exemption, 1905 No. 2 . . 43 Kalgoorlie to Port Augusta Railway, 1911 No. 7, 1912 No. 3 35,36,55 Kalgoorlie to Port Augusta Railway Survey, 1907 No. 4 36, 43 Land Tax, 1910 No. 21 25 Land Tax Assessment, 1910-1912 . . 24, 60, 67, 68 Lands Acquisition, 1906-1912, 1912 No. 39 35, 46, 67, 73 Life^ Assurance Companies, 1905 No. 12 . . . . 28 Lighthouses, 1911 No. 14 .. .. 19, 28, 35, 80 Loan, 1911 No. 24 .. 27 1912 No. 22 27 Manufactures Encouragement, 1908-1912 . . . . 27 Marine Insurance, 1909 No. 11 .. .. ..28 Maternity Allowance, 1912 No. 8 31 Meteorology, 1906 No. 3 28 Naturahzation, 1903 No. 11 29, 32 Naval Agreement, 1903-1912 Naval Defence, 1910-1912 Naval Loan, 1909 No. 14 Naval Loan Repeal, 1910 No. 6 Northern Territory Acceptance, 1910 No. 20 Northern Territory Administration, 1910 No Pacific Cable, 1911 No. 25 Pacific Island Labourers, 1901-1906 . . Papua, 1905 No. 9 Parliamentary Allowances, 1902 No. 20 1907 No. 5 Parliamentary Papers, 1908 No. 16 Patents, 1903-1909 . . . . 29, 35, Patents, Trade Marks and Designs,_1910 No. See also Designs , Trade Marks. Pine Creek to Katherine River Railway Survey, 1912 No. 9 36 55, 27 .. 28 28, 47 .. 27 .. 27 72, 88 .. 88 27, 47 32, 32, 34 55, 60, 88 18, 42 18, 42 18, 43 67, 68, 88 19 . . 29 viii. COMMONWEALTH OP AUSTRALIA CONSTITUTION ACT. Commonwealth of Australia Constitution Act, 63 & 64 Vic. c. 12, Legislation under — Continued. Post and Telegraph, 1901-1912 27, 32, 47, 67, 68 Post and Telegraph Rates, 1902-1911 .. 27,47 Property for Public Purposes Acquisition, 1901 No. 13 35, 46, 67, 73 Punishment of Offences, 1901 No. 14 . . 43, 68 Purchase Telephone Lines Acquisition, 1911 No. 9 27, 35, 47 Quarantine, 1908-1912 28 Referendum (Constitution Alteration), 1906-1912 27, 67, 91 Representation, 1905 No. 11 . . Royal Commissions, 1902-1912 Rules Publication, 1903 No. 18 Sea Carriage of Goods, 1904 No. 19. Seamen's Compensation, 1909 No. 29 1911 No. 13 Seat of Government, 1904 No. 7 1908 No. 24 . 11, 43 .. 43 .. 43 19, 80 19, 67, 80 19, 67, 80 35, 46, 89 35, 35, 43, 46, 89 Seat of Government Acceptance, 1909 No. 23 35, 46, 88, 89 Seat of Government (Administration), 1910 No. 25 46, 88, 89 Secret Commissions, 1905 No. 10 . . . . 19, 43 Senate Elections, 1903 No. 2 . . . . 7, 9, 42 Service and Execution of Process, 1901-1912 . .3, 31 Shale Oil Bounties, 1910 No. 23 27 Spirits, 1906 No. 21 19, 24, 47 State Laws and Records Recognition, 1901 No. 5 32, 87 Statutory Declarations, 1911 No. 3 .. .. ..43 Sugar Bounty, 1903 No. 4 27, 32 1905-1912 27, 32 Sugar Bounty Abolition, 1912 No. 26 . . 27, 32 Sugar Excise Repeal, 1912 No. 25 . . 24, 25 TABLE OF STATUTES. ix. PAGE Commonwealth of Australia Constitution Act, 63 & 64 Vic. c. 12, Legislation under — Continued. Sugar Rebate Abolition, 1903 No. 3 . . . . 24 Supply 43, 70 Surplus Revenue, 1908 No. 15 . . 43, 74, 78, 78 1909 No. 18 . . 43, 74, 78, 78 1910 No. 8 . . 43, 74, 78, 78 Tasmania Grant, 1912 No. 13 79 Telegraph, 1909 No. 7 27, 28 Trade Marks, 1905-1912 . . . . 29, 67, 68 Wireless Telegraphy, 1905 No. 8 . . 27, 47, 88 Wood Pulp and Rock Phosphate Bounties, 1912 No. 32 27 Commonwealth Electoral, 1902 No^ 19 13 ss. 124, 132, 133, 139, 15i, 155, 158, 163, 164, 181, 199, Sched., Forms, P, &c 17 Commonwealth Public Service, 1902 No. 5, s. 78 (1) . . 55 Conciliation, see Commonwealth Concihation and Arbi- tration. Constitution (Q.), 31 Vic. No. 38, ss. 4, 16, 17 . . 82 Constitution Amendment, 1890 (No. 1075), s. 282 (Vic.) 13 Customs, 1901 No. 6, ss. 30, 33, 236 49 22 51 76 76 51 51 2 9 25 61 87 . 40 33 32 32 10, s ss. 52 (g), 53, 56 . . ss. 154, 157, 226 . . Customs Duties (W.A.), s. 1 ; 1 Ed. VII., No. Customs Tariff, 1902 No. 14, s. 45 s. 6, Sch. A. 1908 No. 7, ss. 3, 4, 5, 7, Sch. A. Disputed Elections and Qualifications, 1907 No Excise Tariff, 1906 No. 16 Electoral, 1904 (W.A.), ss. 159-170 ; 1904 No. 20 Factories (W.A.), 1904 No. 22, s. 46 Factories and Shops, 1909 (No. 2) (Vic), s. 39 (No. 2241) Fugitive Offenders, 1881, 44 and 45 Vic. c. 69, ss. 3, 5, 6 immigration Restriction, 1901 No. 17, s. 3 1905 No. 17, ss. 4, 8 X. COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Income Tax, 1895 (Vic), ss. 2, 7, 9, 14 (No 1374) 1374) ss. s. ss. 2, 7, 9, 14 (No. 1901 (Vic.) (No. 1758) Income Tax (Consolidated) (Q.), ss. 3, 7, 12, 58 No. 9 ■ Income Tax Declaratory, 1905 (Q.), s. 2 ; 5 Ed. VII., No. 34 Insolvency, No. 47 of 1887 (Natal), s. 76 Judiciary, 1903 No. 6, s. 18 88. 30, 33, 34, 39, 68, 79, 80 ss. 30, 38, 39 31, 33 33 35 8. 35 88. 35, 39 ss. 35, 39 s. 37 8. 38 s 39 (2) (d) 8. 49 Justices (N.S.W.), 1902 No. 27, ss. 101, 105, 106, 107 8. 106 Justices, 1890 (No. 1105) (Vic), s. 129 Land Tax, 1910 No. 21, s. 2 Land Tax Assessment, 1910 No. 22 Liquor (N.S.W.), 1898 No. 18 Old Age Pensions Appropriation, 1908 No. 18 Pacific Island Immigration (Q.), 44 Vic. No. 1 Pacific Island Labourers, 1901 No. 16, s. 8 Property for Public Purposes Acquisition, 1901 No. 13, s Public Service (N.S.W.), 59 Vic. No. 25, ss. 11, 60 Public Service, 1900 (Vic), s. 19, No. 1721 Real Property (N.S.W.), 1900 No. 25 Revenue, see Surplus Revenue. Seamen's Compensation, 1909 No. 29, ss. 4, 13 . . Shops, see Factories and Shops. South Australian Government, 4 and 5 Will IV., c 95 Stamp Duties (N.S.W.), 1898 No. 27, s. 23 Stamp Duty Amendment (Tas.), 1902 ; 2 Ed. VII., No. 30 Supreme Court (Vic), ss. 3, 8, 37, 54, 55, (No. 1142) PAGE .. 48 .. 49 48, 49 4 Ed. VII., 82 82 34 87 69 49 40 8 58 61 57 58 45 44 13 62 60 60 69 51 51 74 70 29 29 35 56 55 35 23 66 35 47 58 TABLE OF STATUTES. xi. PAGE Surplus Revenue, 1908 No 15, ss. 3, 4 70 Sydney Corporation (N.S.W.), 42 Vic. No. 3, s. 103 . . 84 1902 No. 35,8. 110 ..84 TarifE, see Customs Tariff. Tax, see Income Tax, Land Tax, Land Tax Assessment. Trade Marks, 1905 No. 20, Part VII 20 Wines, Beer and Spirit Sale (W.A.), 44 Vic. No. 9, ss. 5, 15, 39 77 Wines, Beer and Spirit Sale Amendment (W.A.), 57 Vic. No. 25, s. 2 77 2 Ed. VII. No. 44, s. 3 77 TABLE OF CASES. NOrE.— The figures in heavy type denote pages at which the report of the case appears. Ah Sheung, Attorney-General for Commonwealth v. Ah Way, Baxter v. Ah Yick V. Lehmert Aitken, Cock v. Angwin, Holmes v. Appleton V. Moorehead PAGE .. 32 22, 25 57, 60, 65, 68, 69 65 61 19, 30, 57, 70, 80 .. 32 Attorney-General for the Commonwealth v. Ah Sheung Attorney-General for N.S.W. v. Brewery Employees' Union of N.S.W 20, 25, 29 Attorney-General for N.S.W. v. Collector of Customs for N.S.W 19, 64, 74, 75, 85 Attorney-General for Queensland, Brisbane City Council v. . . 64 Attorney-General for Victoria v. City of Melbourne . . . . 64 AustraUan Boot Trade Employees' Federation v. Whybrow and Co 2, 40, 40, 42, 44 B Balmain New Ferry Co., Robertson v. \ •, Robinson v. > 65 Bank of Toronto v. Lambe 48 Barger, The King v. 26, 51, 75, 80 Bartley, Peterswald v. 60, 74, 75 Baxter v. Ah Way. . 22, 25 44 4Q 60 6^ 64 XTj ^*7j UVj Ut*) WXj 65, 68 Bayne v. Blake 45, 60 , Blake v. (4 C.L.R. 1) 64 Blackwood, Chanter v. (No. 2) 17 Blake v. Bayne (4 C.L.R. 1) 64 , Bayne v. . . 45, 60 Table of cases. .. 35 55, 72 58, 60 .. 65 29, 33, 34 Bettman, Snyder v. Bond V. Commonwealth . . Borthistle, Saunders v. Brandsch, Dahms v. Brenan, Robtelmes v. Brewery Employees' Union of N.S.W., Attorney-General for N.S.W. V. 20, 25, 29 Brisbane City Council v. A.-G. for Queensland . . . . . . 64 Broken HUI Proprietary Co. Ltd., Ex parte ; R. v. Common- wealth Court of Conciliation and Arbitration 37, 44, 52 Brown, Victorian Railway Commissioners v. . . . . . . 65 Byrne, Dunne v. . . . . . . . . . . . . . . 64 Chanter v. Blackwood (No. 2) City of Perth Corporation, Perth Gas Co. Ltd. v. Cock V. Aitken , Smith V. . . 17 . . 65 . . 65 . . 65 76, 79 Collector of Customs, D. & W. Murray v. Collector of Customs for N.S.W. , Attorney General for N.S.W. V. 19, 64, 74, 75, 85 Colonial Bank of Australasia Ltd. v. Marshall . . . . . . 64 Commissioners for Special Purposes of the Income Tax, R. w. . . 61 Commissioner of Income Tax for Queensland, Cooper v. . . 83 Commissioners of Taxation (N.S.W.) v. Baxter 44, 49, 60, 63, 64, 65, 68 , Mooney v. . . . . 64 Commonwealth, Bond v. . . . . . . . . . . 55, 72 ■ — ■ , Mason v. . . . . . . . . . . . . 72 r ^ V. McKay 26, 51, 75, 80 , V. New South Wales . . . . . . . . 35 , New South Wales v. (PubUc Service) 56, 71, 78 , New South Wales v. (Surplus Revenue) 70, 71, 74, 75, 78, 82 , Osborne v. — , Sargood Bros. v. 25, 51, 53, 84 51 — , Sydney Corporation v. 2, 25, 50, 73, 83, 84 Commonwealth and Victoria, Tasmania v. . . 75, 76, 78 Commonwealth Court of Conciliation and Arbitration ; Ex parte Broken Hill Proprietary Co. Ltd., R. v. 37, 44, 52 xiv. COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. PAOB (Dommonwoalth Court of Conciliation and Arbitration, Ex parte Whybrow & Co., R. v 40, 57, 60, 65 Cooper V. Commissioner of Income Tax for Queensland . . 83 Cowan & Sons v. Lockyer . . . . . . . . . . 51 Currie & Co., Archibald, Merchant Service Guild of Australia v. 2 Dahms v. Brandsch . . . . . . . . . . . . 65 Daily Telegraph Newspaper Co. Ltd., McLaughlin v. . . . . 64 Dalgamo v. Hannah . . . . . . 57, 58, 60 Davies & Jones v. Western Australia . . . . . . . . 87 Deakin v. Webb 44, 48, 49, 63, 64, 82, 83 D'Emden v. Pedder . . 19, 35, 44, 47, 48, 49, 64, 83, 84, 85 Dun, Mclnto^sh v. . . . . . . . . . . . . 64 Dunne v. Byrne . . . . . . . . . . . . . . 64 F Federated Amalgamated Government Railway and Tramway Service Association v. N.S.W. Railway TraflBc Em- ployees' Association . . . . 19, 36, 80, 80, 81, 81, 85 Federated Saw Mills &c. Employees of Australasia v. James Moore & Son Proprietary Ltd. . . 2, 38, 80, 83 Flint V. Webb 63, 64, 64 Fox V. Bobbins 77, 84 Gagnon, Bruce v. . . . . . . . . .. . . . . 58 Golden Horseshoe Estates Co. v. The Crown . . . . 64 Governor of S.A., R. « 8, 9, 18 Guthridge Ltd., N., Wilfley Ore Concentrator Syndicate Ltd. V 65 Hannah, Dalgamo v. . . . . 57 Haweis, Miller v. . . . . . . . . . . . . 13 Holmes v. Angwin . . . . . . . . . . . . . . 61 Huddart Parker & Co. Ltd. v. Moorehead 19, 30, 57, 70, 80 TABLE OF CASES. I Income Tax Acts, In re . . Incorporated Law Institute of N.S.W. v. Meagher . . International Harvester Co. of America v. Peacock XV. PAGE . 48 62 64 James, Parkin v. . . . . . . . . . . .. 58, 60, 63 Josephson v. Yomig . . . . . . . . . . . . 57 Jumbunna Coal Mine v. Victorian Coal Miners' Association 37, 44 Kamerooka G.M. Co. v. Kerr Kerr, Kamerooka G.M. Co. v. King The, v. Barger K . . 61 . . 61 26, 51, 75, 80 Lambe, Bank of Toronto v. Lee Fay v. Vincent Lehmert, Ah Yick v. Lockyer, Cowan & Sons v. Lothian v. Rickards Lyne v. Webb 48 87 57, 60, 65, 68, 69 ..51 ..64 48, 63, 82, 83 M Marshall, Colonial Bank of Australasia Ltd. v. Maryland, McCuUoch v. . . Mason v. Commonwealth . . Meagher, In re , Incorporated Law Institute of N.S.W , McKelvey v. .. 64 .. 44 ., 72 .. 62 V 62 33, 36, 83 Melbourne, City of, v. Attorney-General for Victoria . . . . 64 Menck, National Phonograph Co. of Australasia Ltd. v. . . 64 Merchant Service Guild of Australia v. Archibald Currie & Co. 2 Miller v. Haweis . . . . . . . . . . . . 13 Minahan, Potter v. . . . . . . . . . . . . 32 Mooney v. Commissioners of Taxation (N.S.W.) . . . . 64 Moore & Sons Proprietary Ltd., James, Federated Saw Mills &c. Employees of Australasia v. . . 2, 38, 80, 83 Moorehead, Appleton v 19, 30, 57, 70, 80 , Huddart Parker & Co. Ltd. v. 19, 30, 57, 70, 80 3c*i COMSTOKWEALTH OF AUSTRALIA CONSTITUTION ACT. Murray, D.& W., v. Collector of Customs Musgrove v. McDonald McCuUoch V. Maryland McDonald, Musgrove v. Macintosh v. Dun . . McKay, Commonwealth v McKelvey, In re , V. Meagher PAGE 76, 79 . . 61 ..44 . . 61 .. 64 26, 51, 75, 80 . . 34 . . 33, 36, 83 McLaughlin v. Daily Telegraph Newspaper Co. Ltd. . . 64 Macnaghten v. Paterson . . . . . . . . . . . . 64 National Phonograph Co. of Australasia Ltd. v. Menck . . 64 New South Wales, Commonwealth v. . . . . . . . . 35 New South Wales v. Commonwealth (PubHc Service), 56, 71, 78 ~ (Surplus Revenue) 70, 71, 72, 74, 75, 82 New South Wales Railway Traffic Employees' Association, Federated Amalgamated Government Railway and Tramway Service Association v. 19, 36, 80, 80, 81, 81, 85 O'Loghlin, Vardon v. Osborne v. Commonwealth Osborne & Co., D. M., Peacock v. Outtrim, Webb v. Owners of s.s. KaUbia v. Wilson . . 8, 9, 18 25, 51, 53, 84 64 44, 49, 60, 63, 68, 82, 83 . . 23, 67, 80 Parkin v. James Paterson, Macnaghten v. . . Paul, In re Peacock, Litemational Harvester Co. oif America v. V. Osborne & Co., D. M. Pedder, D'Emden v. . . 19, 35, 44, 47, 48, 49, Perth Gas Co. Ltd. v. CSty of Perth Corporation Peterswald v. Hartley Potter V. Minahan Prince v. Gagnon . . 58, 60, 63 .. 64 .. 60 64, 65 .. 64 64, 83, 84, 85 .. 65 60, 74, 75 .. 32 .. 58 TABLE OF CASES. Jivii. PAGE R. V. Commissioners for Special Purposes of the Income Tax. . 61 — V. Commonwealth Court of Conciliation and Arbitration ; Ex parte Broken Hill Proprietary Co. Ltd. 37, 44, 52 — V. Commonwealth Court of Conciliation and Arbitration ; Ex parte Whybrow & Co 40, 57, 60, 65 — V. Governor of S.A. Rickards, Lothian v. Robbins, Fox «... Robertson v. Balmain New Ferry Co. ] Robinson v. Balmain New Ferry Co. / Robtelmes v. Brenan Sargood Bros. v. Commonwealth Saunders v. Borthistle Smith V. Cock Sutton, The King v. Snyder v. Bettman . . South AustraUa v. Victoria — , Governor of, R. v. Sydney Corporation v. Commonwealth Tasmania v. Commonwealth and Victoria The Crown, Golden Horseshoe Estates Co. The King v. Barger — ■ — V. Sutton . . 8, 9, 18 .. 64 77. 84 . . .. 65 . . 29, 33, 34 .. 51 58, 60 .. 65 .. 49, 74, 75, 86 . . .. 35 . . . . .. 65 . . 8, 9, 18 2, 25, 50, 73, 83, 84 75, 76, 78 V. .. 64 25, 51,-75, 80 49 , 74, 75, 86 Vardon v. O'Loghlin 8, 9, 18 Victoria, South AustraHa v. . . . . . . . . . . 65 Victorian Coal Miners' Association, Jumbuona Coal Mine v. 37, 44 Victorian Railway Commissioners v. Brown . . . . . . 65 Vincent, Lee Fay v. 87 W Webb, Deakin v. , FUnt V. 48, 49, 63, 64, 82, 83 . . 63, 64, 64 xvUi. COMMONWEALTH OF AUSTRAIilA CONSTITUTION ACT. PAGE Webb, Lyne v 48, 63, 82, 83 V. Outtrim ' 44, 49, 60, 63, 68, 82, 83 Western Australia, Davies & Jones v. . . ■ ■ . . 87 Whybrow & Co., Australian Boot Trade Employees' Federation V. 2, 40, 40, 42, 44 -— — — — — — ; Ex parte ; R. v. Commonwealth Court of Conciliation and Arbitration . . 40, 57, 60, 65 Wilfley Ore Concentrator Syndicate Ltd. «. N. Guthridge Ltd. 65 Wilson, In re . . . . . . . . . . . . . . 24 , Owners of s.s. Kalibia v. . . . . . . 23, 67, 80 WoUaston's Case . . . . . . . . . . . . . . 48 Young, Josephson v. . . . . . . . . . . . . 57 INTRODUCTION. AN'A.LYSIS. PAGE. Common powers xxii, xxiv-xxviii Commonwealth Legislative powers . . . . . . XX Commonwealth Legislature, sphere of . . . . . . xxi Concurrent powers xxvi-xxviii Conflict of laws . . . . xx Delegated law-making powers xxx Exclusively Commonwealth powers . . xxi, xxii-xxiv Exclusively State powers xxii, xxviii-xxix Imperial Parliament . . . . xix Legislation for Empire — direct . . . . . . xix indirect . . . . . . xx Paramount powers . . xxiv-xxvi Sovran Statutes, definition . . xx Sovran Statutes, delegated powers xinder . . . . xxx State Legislative powers . . xx Residuary . . . . xxix State Legislature, sphere of xxi Statute General, definition . . xx THE IMPERIAL PARLIAMENT. The Imperial Parliament is the supreme law-making authority for the British Empire, and, theoretically, without question, the hand that gave our Constitutions can take them away, although practically, of course, such action is unthink- able. As regards the Commonwealth, at the present time, it acts : — I. directly, by Imperial Statutes or Orders in Council and regulations under them, by express words or necessary intendment applying to the Commonwealth. XX. INTRODUCTION. II. indirectly — (1) through plenary powers conferred on : (a) the Commonwealth, by the Commonwealth of Austraha Constitution, 63 and 64 Vic. c. 12. (b) each of the States, by its own Constitution. (2) through powers delegated to the Commonwealth and/or States. Where there is a conflict between Imperial and Com- monwealth or State legislation, the former necessarily pre- vails. The Commonwealth has certain spheres of exclusive legislative authority ; and each of the States has its own similar exclusive sphere. As regards the middle territory, the power of law making is concurrent, with the proviso (by s. 109 of the Common- wealth Constitution) that where there is inconsistency between the Commonwealth and State legislation, the former shall' prevail. The practical effect of this must eventually be that Commonwealth legislation, except as regards minutiae, will oust State legislation from this sphere. COMMONWEALTH AND STATE LEGISLATIVE POWERS. , The following is an endeavour to analyse the respective spheres of Commonwealth and State legislation, consequent on the Commonwealth Constitution. DEFINITIONS. It has been found desirable to coin two terms. Sovran Statute and Statute General. Sovran Statutes, in respect to any British Possession are Imperial Statutes in force therein by reason of their being made appKcable thereto by the express words or necessary intendment of any Imperial Statute (cf . Colonial Laws Validity Act, 28 & 29 Vic. c. 63, s. 1). They represent the Supreme Law-maldng authority of the Empire in its Imperial aspect. They may be, in point of time, before or after the " settle- ment " of any colony (in respect of New South Wales, before or after the 25th July, 1828) : Lewis, Government of Depen- dencies, 201. COMMONWEALTH AND STATE POWERS. xxi. They cannot in general be amended or repealed by Colonial Legislatures (Colonial Laws Validity Act, 1865). Sometimes special powers are given to such Legislatures to make laws as if such Statutes had not been passed, or to alter or vary them, or repeal them : e.g.. Coinage Act, 1853 ; Mer- chant Shipping Act, 1894, s. 785. The modem tendency is for the Imperial Legislature to confer extended powers on Colonial Legislatures in this way, just as Colonial Legislatures tend to confer, under Statutes, greater powers on their Execu- tives in the direction of making Rules, Regulations, By-laws and Ordinances. Over two hundred New South Wales Statutes confer such powers. They represent the British ParUament in its Imperial aspect, legislating for the Empire as a whole, in respect of matters that Colonial Legislatures cannot deal with by reason of constitutional limitations. They may be Statutes in force in England " with respect to a Colony," e.g.. Colonial Solicitors Act, 1900, Colonial Probates Act 1892 ; Finance Act 1894 ; or in force in the portion of the British Dominions named, or throughout the Empire. Statutes General, in respect to any settled colony, are so much of the Statute Law of England as comes into force therein on its " settlement," by reason of being applicable thereto on such date. The date of " settlement " may be the actual date of foundation of such colony, or some date arbi- trarily fixed by the Crown by ordinance, or by the Imperial Parliament by Sovran Statute {e.g., 9 Geo. IV. c. 83 fixed the date of " settlement " of New South Wales as 25th July, 1828). Acts are taken to be apphcable or not, in relation to the position of the colony at that date : Quan Tick v. Hinds (2 C.L.R. 345, 356). The Colonial Legislature can amend or repeal them. This definition excludes Sovran Statutes, since the latter become automatically in force on the foundation of the colony. The Respective Spheres of the Commonwealth and State Legislatures. The respective law-making powers may be classified as follows : — (I.) Exclusively Commonwealth powers — (1) Under Commonwealth of Australia Constitution Act, 63 & 64 Vic. c. 12 ; xxii. INTRODUCTION. (a) without consent of States ; (6) with consent of States. (2) Delegated powers under other Sovran Statutes and Sovran Orders. (II.) Common to both Commonwealth and State (subject to s. 109). (1) Commonwealth paramount, by reason of purposes, in their exercise, but such exercise to commence : (a) without consent of States ; (6) with consent of States. (2) Concurrent — (a) without consent of States ; (b) with consent of States. (III.) Exclusively State powers — (1) Under its own Constitution Sovran Statutes (protected by s. 106 of the Commonwealth Constitution and certain powers specially reserved under the same Constitution) ; (a) as to amendment of State Constitution ; (6) as to Statutes General ; (c) as to Adopted Statutes ; (d) as to initiated legislation. (2) Under the Commonwealth Constitution — (a) without consent of Commonwealth ; (6) with consent of Commonwealth — (i.) first obtained ; (ii.) until forbidden. (3) Under other Sovran Statutes and Sovran Orders. (I.) Exclusively Commonwealth powers — (1) Under the Commonwealth of Australia Constitution Act — (a) Without consent of States : — S. 51, i. — Trade and commerce (a) with other countries (6) within the States ; on the imposition of uniform duties of customs, the power over customs, excise and bounties on the production or export of goods, became exclusively Commonwealth (s. 90) ; and trade, commerce and intercourse among the States absolutely free (the proviso has now lapsed) (s. 92) ; trade and commerce includes navigation and shipping and State railways (s. 98) ; an Inter-state Commission is authorized to regulate trade and COMMONWEALTH AND STATE POWERS. xxiii. commerce under the Constitution (s. 101) ; Par- liament may forbid preferences among States (s. 102) ; the Commonwealth shall not tax State property (s. 114). S. 51, iii. — Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth ; on the establish- ment of Commonwealth control of payment of bounties passes to Executive Government of Com- monwealth (s. 86) ; the power to grant bounties becomes exclusive on imposition of uniform duties of customs and excise (s. 90) ; and thereafter State bounty laws cease to have effect (s. 90) ; such bounty laws must be imposed within two years of estab- lishment of Commonwealth (s. 88). S. 51, iv. ^Borrowing money on pubUc credit of Com- monwealth. This from the nature of things is an exclusive Commonwealth power. S. 51, V. — ^Postal, telegraphic, telephonic, and other hke services. The existing departments at the date of the proclamation (1st January, 1901) are transferred to the Commonwealth (s. 69), and such services are made exclusively Commonwealth (52, ii), and the property used exclusively in connection there- with transferred (s. 85). S. 51, vi. — Naval and mihtary 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. By s. 69, the departments are transferred as from 1st January, 1901 ; and no State can, without Commonwealth consent, raise or maintain any naval or mihtary force (s. 114) ; the property used exclusively in connection with transferred departments is handed over to the Commonwealth (s. 85). S. 51, vii. — Lighthouses, lightships, beacons and buoys : see note to 51, v., supra. S. 51, ix. — Quarantine : see note to 51, v., supra. S. 51, xii. — Currency, coinage and legal tender : see note to 51, v., supra. The effect of s. 1 15 is to make this matter exclusively Commonwealth. xxiv. INTRODUCTION. S. 52, i.— The seat of Govetnment of the Commonwealth (a) and all places acquired by the Commonwealth for pubhc purposes (b) — (a) This became vested in the Commonwealth under s. 125. (b) The power to acquire such properties is given by ss. 51, xxxi., and 85. S. 52, ii. — ^Departments transferred to Commonwealth. These are particularized in s. 69. Some others to be included are : 51, viii., xi., xvii., and xviii., q.v. S. 52, iii. — Other matters declared by this Constitution to be within the exclusive power of the Common- wealth. These are contained in s. 51, vi., by s. 114, 51, xii., by s. 115 ; s. 90, s. Ill, q.v. S. 90. — See ss. 51, iii. and 52, iii., supra. S. 115. — See 51, xii., supra. S. 122. — ^Territory placed by Queen under authority of Commonwealth. S. 51., xiii. — -The issue of paper money (s. 115). (6) With consent of States — S. 111. — ^As to territory surrendered by State. S. 122. — ^Alteration of State Emits. S. 128. — ^Alteration of Constitution, (c) Delegated powers under other Sovran Statutes and Orders, such as : — Extradition Act, 1870 ; Mail Ships Act, 1891 ; Coinage (Colonial) Offences Act, 1858 ; Army Act, 1881, ss. 156 (8) and 169. (II.) Common powers (subject to s. 109) — (1) Paramount — (a) Without State consent — S. 51, X. — ^Fisheries in Austrahan waters beyond State limits. S. 51, xxiv. — ^The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the Courts of the States. S. 51, XXV. — The recognition throughout the Common- COMMONWEALTH AND STATE POWERS. xxv. wealth of the laws, the pubHc acts and records, and the judicial proceedings of the States (by s. 118 fuU faith and credit shall be given throughout the Commonwealth to the laws, the pubhc Acts and records and the judicial proceedings of every State). S. 51, xxix. — External affairs. This may be fairly interpreted as apphcable to (1) the external repre- sentation of the Commonwealth by accredited agents where required ; (2) the conduct of the business and promotion of the interests of the Commonwealth in outside countries ; and (3) the extradition of fugitive offenders from outside countries : Quick and Garran, 632. S. 51, XXX. — The relations of the Commonwealth with the islands of the Pacific. S. 51, xxxi. — The acquisition of property on just terms from any State or person for any purpose in respect of which the Parhament has power to make laws. S. 51, XXXV. — Concihation and arbitration for the pre- vention and settlement of industrial disputes ex- tending beyond the limits of any one State. S. 51, xxxvi. — Matters in respect of which this Consti- tution makes provision until the Parhament other- wise provides. These matters are : Governor's salary (s. 3) ; Senate electorates (s. 7) ; Queensland Senatorial divisions (s. 7) ; number of Senators (s. 7) State electoral laws (s. 10) ; Senate quorum (s. 22) ; mode of ascertaining quota (s. 24) ; electoral divisions (s. 29) ; electors' quahfications (s. 32) ; State electoral laws (s. 31) ; Members' qualifica- tions (s. 34) ; quorum of House (s. 39 ; ) penalty for sitting when disqualified (s. 46) ; disputed elections (s. 47) ; payment of Members (s. 48) ; number of Members (s. 65) ; salaries of Ministers (s. 66) ; non-pohtical officers, appointment and removal of (s. 67) ; conditions of appeals (s. 73) ; customs and excise revenue, appUcation of (s. 87) ; financial assistance to States (s. 96); audit (s. 97). S. 51, xxxix. — Matters incidental to the execution of any power vested by this Constitution in the vi. INTRODUCTION. Parliament (a), or in either House thereof (6), or in the Government of the Commonwealth (c), or in the Federal Judicature {d), or in any Department (e) or officer (/) of the Commonwealth. (a) Among such powers are those in as. 9, 14, 49, 52 ^l), 52 (ii.), 71, 73, 76, 77, 78, 94, 98, 101, 102, 105. 112, 120, 121, 12.3 (with consent of State). (ft) Hee ss. 15, 47, 50 (c) See s. 70. (d) See a. 71. (e) See a. 52 (ii). U) See ss. 64, 68. (6) With State consent — S. 51, xxxiii. — ^The acquisition with the consent of a State, of any railways of the State on terms ar- ranged between the Commonwealth and the State. S. 51, xxxvii. — ^Matters referred to the Parliament of the Commonwealth by the ParUament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parhaments the matter is referred, or which afterwards adopt the law. S. 51, xxxviii. — ^The exercise within the Commonwealth, at the request or with the concurrence of the Par- liaments of all the States directly concerned, of any power which can at the estabUshment of this Constitution be exercised only by the Parhament of the United Kingdom, or by the Federal Council of Australasia. (2) Concurrent powers — (a) Without State consent : — S. 51, ii. — Taxation, but so as not to discriminate between States or parts of States. (On the imposi- tion of uniform duties of customs, exclusive power over customs, excise and bounties on production or export of goods, vests in the Commonwealth Par- liament (s. 90) ; Trade within the Commonwealth is to be free (s. 92) ; the Commonwealth is not to give preference to any State (s. 99) ; the Common- wealth shall not impose any tax on property of any kind belonging to a State (s. 114). S. 51, v.— Matters relating to postal, telegraphic and COMMONAVEALTH AND STATE POWERS. xxvii. telephonic communications, other than transferred departments. S. 51, vii. — Matters relating to lighthouses, lightships, beacons and buoys, other than transferred depart- ments. S. 51, viii. — ^Matters relating to astronomical and meteor- ological observations (subject to s. 69). S. 51, ix. — Matters relating to quarantine, other than transferred aepartments. S. 51, xi. — Census and statistics. S. 51, xiii. — Banking, other than State banking; also State banking extending beyond the limits of the State concerned ; the incorporation of banks. S. 51, xiv. — ^Insurance other than State insurance, also State insurance extending beyond the limits of the State concerned. S. 51, XV. — ^Weights and measures. S. 51, xvi. — BiUs of exchange and promissory notes. S. 51, xvii. — ^Bankruptcy and insolvency (subject to ss. 107-109). S. 51, xviii. — Coyprights, patents of inventions and designs and trade marks (subject to ss. 107-109). S. 51, xix. — Naturahzation and aUens. S. 51, XX. — Foreign corporations and trading or financial corporations formed within the limits of the Commonwealth . S. 51, xxi. — ^Marriage. S. 51, xxii.— Divorce and matrimonial causes and in relation thereto ; parental rights and the custody and guardianship of infants. S. 51, xxiii. — Invalid and Old- Age Pensions. S. 51, xxvi. — People of any race, other than the abor- iginal race in any State, for whom it is deemed necessary to make special laws. S. 51, xxvii. — ^Immigration and emigration. S. 51, xxviii. — ^The influx of criminals. S. 51, xxxii. — Railways, control with respect to transport for the naval and mihtary purposes of the Com- monwealth. (6) With State consent — xxviii. INTRODUCTION. S. 51, xxxiv. — Railway construction and extension in any State with the consent of that State. (III.) Exclusively State Powers — (1) Plenary under its own Constitution (protected by s. 106 Commonwealth Constitution). (a) As to amendment of State Constitution ; (6) as to Statutes General , (c) as to Adopted Statutes ; (d) as to initiated legislation. [Specially reserved under Commonwealth Constitution : — S. 51, i. — ^Trade and commerce within the State. S. 51, X. — ^Fisheries in Australian waters within State limits. S. 51, xiii. — State banking within limits of State. S. 51, xiv. — State insurance within limits of State. S. 51, XX. — Corporations other than foreign corporations and trading or financial corporations. S. 51, xxii. — ^Parental rights and the custody and guar- dianship of children, except in relation to divorce and matrimonial causes. S. 51, xxvi. — Special laws in respect of aborigines. S. 90. — Grant of or agreement for bounty made before 13th June, 1898. S. 91. — Bounty on mining for gold, silver, or other metals. S. 92. — ^Duty on goods (lapsed). S. 100. — Reasonable use of waters of rivers for conserva- tion or irrigation. S. 104. — Saving of certain railway rates. S. 106. — Saving of State Constitutions. S. 107. — Saving of power of State ParUaments. S. 108. — Saving of State laws. S. 113. — ^Fermented, distilled, or intoxicating liquors passing into a State or remaining therein for con- sumption, sale or storage.] (2) Plraiary under Commonwealth Constitution — (a) Without Commonwealth consent — S. 8. — Qualification of electors ; S. 15. — Casual vacancies in Federal Parliament. (6) With Commonwealth consent — (i.) first obtained : — COMMONWEALTH AND STATE POWERS. xxix. S. 91. — ^Bounty on exportation of goods. S. 114. — Raising or maintaining naval or military force or imposing tax on Commonwealth property, (ii.) until forbidden : — S. 9. — ^Election of Senators. S. 10. — Election of Representatives. S. 29. — Electoral divisions. S. 30. — Qualification of electors of Representatives. S. 31. — ^Application of State laws as to election of more numerous House. [S. 90. — Till the imposition of uniform duties of customs, the power to impose duties of customs and of excise and to grant bounties on the production or export of goods (lapsed).] [S. 95. — Customs duties of Western Australia (lapsed).] S. 97.— Audit. S. 102. — ^Preference by States. S. 109. — State may levy charges for inspection laws. (3) Delegated under Sovran Statutes and Sovran Orders. RESIDUARY STATE LEGISLATIVE POWERS. The balance of Statute law-making power left to the State Legislature after the subtraction of exclusive and con- current Federal powers, embrace a large mass of constitutional, territorial, municipal and social powers, including control over : agriculture ; banking (State) within hmits of State ; borrowing money on sole credit of State ; bounties and aids on mining for gold, silver or metals ; charities ; Constitution of State ; amendment, maintenance and execution of ; corporations — other than foreign and trading or financial ; Courts, civil and criminal, maintenance and organization for the execution of laws of a State ; departments of State Government, regulation of ; education ; factories ; fisheries within the State ; forests ; friendly societies ; game ; health ; inspection of goods im - ported or proposed to be exported in order to detect fraud or to prevent the spread of disease ; insurance (State) within the limits of State ; intoxicants, regulation and prohibition of the manufacture within the State of fermented, distilled, or in- toxicating liquors (s. 113) ; justice — Courts ; land, management XXX. INTRODUCTION. and sale of public lands within the State ; licenses (subject to 8. 92) ; manufactures, see factories ; mines and mining ; municipal institutions and local government ; officers — ap- pointment and payment of public officers of the State ; police — regulations, social and sanitary ; prisons — State, and reforma- tories ; railways (except as to ss. 51, xxxii. and s. 102) ; rivers (except as to ss. 98, 100) ; taxation (except as to ss. 90, 92) ; trade and commerce (subject to s. 51 (i.) ) ; see Quick & Garran, 935. DELEGATED POWERS UNDER SOVRAN STATUTES. In addition to the plenary law-making powers conferred on Colonial Legislatures by the Sovran Statute or exercise of the royal prerogative creating them, they are frequently specially accorded further powers. These are of two kinds — (1) Of amendment of Sovran Statutes, e.g., Common- wealth of Australia Constitution, 63 & 64 Vic. c. 12, s. 128 ; N.S.W. Constitution Acts. (2) Of suspension of Sovran Statutes on comphance with certain conditions laid down by the Imperial Legis- lature in the Statute in question or some other Sovran Statute. Examples of this class are furnished by the following Statutes — Coinage Offences, 1851, 16 & 17 Vic. c. 48, s. 4; Merchant Shipping, 1894, 57 & 58 Vic. c. 60, ss. 102, 264, 280, 444, 478, 735, 736; Admiralty Offences (Colonial), 1860, 23 & 24 Vic. c. 122 ; Colonial Naval Defence, 1865, 28 & 29 Vic. c. 14, s. 3; Colonial Laws Validity, 1865, 28 & 29 Vic. c. 63 ; Colonial Marriages, 1865, 28 & 29 Vic. c. 64 ; Naturalization, 1870, 33 & 34 Vic. c. 14, s. 16 ; Extradition, 1870, 33 & 34 Vic. c. 52, s. 18 ; Austrahan Colonies Duties, 1873, 36 & 37 Vic. c. 22 ; Army, 1881, 44 & 45 Vic. c. 58, s. 177 ; Commonwealth of Australia Constitution, 1900, 63 & 64 Vic. c. 12, s. 27. (A complete list will be found in Imperial Statutes (New South Wales) now in the Press). See also on this point, Moore's Commonwealth of Australia, second edition, page 272. COMMONWEALTH OF AUSTRALIA OONSTITUTION ACT. 63 & 64 Vic. c. 12. An Act to constitute the Commonwealth of Australia, common- wealth OF - , r I -, AUSTRALIA [9th July, 1900.] CoNSTmrrioir. WHEKEAS 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 w^hereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows : — 1. This Act may be cited as ''The Commonwealth of short title. Australia Constitution Act." 2. The provisions of this Act referring to the Queen shall Act to extend ^ " to the Queen's extend to Her Majesty's heirs and successors in the sovereignty succesBors. of the United Kingdom. 3. It shall be lawful for the Queen, with the advice of Proclamation of Common- the Privy Council, to declare by Proclamation that, on and after wealth. 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 CONSTITUTION ACT A 2 PROCLAMATION OF COMMONWEALTH. 63 & 64 Vic. Majesty 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 Common- wealth of Australia." But the Queen may, at any time after the Proclamation, appoint a Governor-General for the Com- monwealth. meTofTo't. 4- The Commonwealth shall be established, and the Con- stitution 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 had taken effect at the passing of this Act. Deration of g rpj^jg ^^^^ ^^^ ^^^ j^^^^g ^^^^ ^^ ^j^^ Parliament of and taws*'™ the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people, of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State ; 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. See Australian Boot Trade Employees Federation v. Whybrow & Co., note to s. 51 (xxxv.). Federated Saw Mills &c.. Employees of Australasia v. James Moored Sort Proprietary Ltd., note to s. 51 (xxxv.). Sydney Corporation v. Commonwealth, note to s. 114. Industrial Conciliation and Arbitration (Commonwealth)— Jurisdic- tion of Commonwealth Court of Conciliation and Arbitration— Industrial dispute — " Ships whose first port of clearance and whose port of destina- tion are in the Commonwealth" — Commonwealth of Australia Con- stitution Act 1900 (63 and 64 Vict. c. 12), s. V. — Commonwealth Concilia- tion and Arbitration Act 1904 (No. 13 of 1904). — A joint stock company registered in Victoria were owners of a line of ships registered in Mel- bourne and engaged in trade between Australia, Calcutta, and South Africa. The officers of the company's ships resided in Australia and were engaged there, but the ship's articles were filled in and signed in Calcutta. The officers, though not entitled to be discharged in Aus- tralian ports, were allowed to leave at such ports if they wished, with the consent of the master. The ships did no inter-state trade, but occasionally did short trips from Calcutta to other Indian ports. The COMMONWEALTH OF AUSTRALIA CONSTITUTION. 3 organization of employes to which the officers belonged filed a claim 63&64Vic. in the Commonwealth Court of ConciHation and Arbitration for the C. 12. settlement of a dispute between the officers and their employers as to CIS. 5-9. the wages, hours, and conditions of labour during the voyages of their ships. Hdd, that the Court had no jurisdiction to settle the dispute. Ships engaged in such a trade are not ships " whose first port of clearance and whose port of destination are in the Commonwealth " within the meaning of s. V. of the Commonwealth of Australia Constitution Act 1900. Merchant Service Guild of Australia v. Archibald CuRRiE & Co., F.C., 5 C.L.K. 737. 6. "The Commonwealth" shall mean the Commonwealth Definitions. of Australia as established under this Act. "The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the North- ern Territory of South Australia, as for the time being are parts of the Commonwealth, and such Colonies or Territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a "State." "Original States" shall mean such States as are parts of the Commonwealth at its establishment. 7. The Federal Council of Australasia Act, 1885, is Repeal of ' Federal hereby repealed, but so as not to affect any laws passed by the council Act. Federal Council of Australasia and in force at the establish- c^eo.** ^"''' ment 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. For Repeal of Federal Council Acts, see Service and Execution of Process Act (1901-1912), (1901 No. 11, s. 2). 8. After the passing of this Act the Colonial Boundaries Application of ^ ° Colonial Act, 1895, shall not apply to any colony which becomes a State Boundaries of the Commonwealth ; but the Commonwealth shall be taken ss & 69 vict. c 34 to be a self-governing colony for the purposes of that Act. 9. The Constitution of the CommouAvealth shall be as constitution. follows : — 63 & 64 Vic. c. 12. CI. 9-S.2. THE CONSTITUTION. The Constitution. This Constitution is divided as follows: — CHAPTER I.— The P.\rliambnt : Part I. — General: Part II. — The Senate: Part III. — The House of Representatives: Part IV. — Both Houses of The Parliament: Part V. — Powers of The Parliament: CHAPTER II. — The Executive Government: CHAPTER III.— The Judicature: CHAPTER IV.— Finance and Trade: CHAPTER v.— The States: CHAPTER VI.— New States: CHAPTER VII.— Miscellaneous : CHAPTER VIII. — Alteration of the Constitution. The Schedule. Chapter 1. The Parlumknt. Part I. General. Legislative power. Governor- General. CHAPTER I. The Parliament. Part I. — General. 1. The Legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called "The Parliament," or "The Parliament of the Commonwealth." i 2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise 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. COMMONWEALTH OF AUSTRALIA CONSTITUTION. 5 3. There shall be payable to the Queen out of the Con- 63&64Vic;; solidated Eevenue Fund of the Commonwealth, for the salary *■ '*• SS 3«7 of the Governor-General, an annual sum which, until the Par- liament otherwise provides, shall be ten thousand pounds. Governor- General. The salary of a Governor-General shall not be altered during his continuance in office. 4. The provisions of this Constitution relating to the Provisions " relating to Governor-General extend and apply to the Governor-General oovemor- 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 any other office during his ad- ministration of the Government of the Commonwealth. 5. The Governor-General may appoint such times for sessions of ■' '^^ Parliament. holding the sessions of The Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue The Parliament, and may in like manner dissolve the and™^*'""' House of Bepresentatives. dissolution. After anv general election The Parliament shall be sum- summoning - " Parliament. moned to meet not later than thirty days after the day appointed for the return of the writs. The Parliament shall be summoned to meet not later than rirst 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. Part II. — The Senate. part ii. Thp Senate 7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until '^^ ®™**^- The Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth other- wise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the 6 THE SENATE. 63 & 64 Vic. State into divisions and determining tlie number of senators «« 1^1 to be chosen for each division, and in the absence of such pro- ' vision 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 the 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 have less than six senators. The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified bv the Governor to the Governor-General. Qualification of electors. 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 only once. As to Qualification of Electors, see Commonwealth Franchise Act, 1902 No. 8. Method of election of senators. 9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws pre- scribing the method of choosing the senators for that State. Times and places. The Parliament of a State may make laws for determin- ing the times and places of elections of senators for the State. As to elections of, and method of choosing, Senators, see Com- monwealth Electoral, 1902-1911, ss. 86, 87, 88, 88a, 89, 90, 100, 150, 160, 161, 165, 169 (1902 No. 19, ss. 86, 87, 88, 89, 90, 100, 150, 160, 161, 165, 169 ; 1911 No. 17, s. 12 (s. 88a), s. 25 (s. 161a (3) ; s. 26 (161b); 1905 No. 26, s. 47 (s. 161a (1)) ; 1909 No. 19, s. 28 (s. 161 a (2).) Senate Elections, 1903 No. 2. COMMONWEALTH OF AUSTRALIA CONSTITUTION. 7 10. Until The Parliament otherwise provides, but sub- 63 & 64 Vie. ject to this Constitution, the laws in force in each State, for •»" ^2. SS 9>1 3 the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as It^telaws" "' practicable, apply to elections of senators for the State. See notes to s. 9. 11. The Senate may proceed to the despatch of business, PaUure to notwithstanding the failure of any State to provide for its senators. representation in the Senate. 12. The Governor of any State may cause writs to be issue of writs. issued for elections of senators for the State. In the case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution. As to writs for senate elections, see Commonwealth Electoral Act (1902-1911, SS. 64, 86-90, 93, 165 (1902 No. 19, ss. 86-90, 93 (s. 165 (1) ) ; 1909 No. 19, s. 12 (s. 64 (2) ) ; 1911 No. 17, s. 12 (88a) ; s. 30, 165 (2). Senate Elections, 1903 No. 2, s. 7. 13. As soon as may be after the Senate first meets and notation of H ^Tl AffO 1*R after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practic- able: and the places of the senators of the first class shall become vacant at the expiration of three years (a), and the places of those of the second class at the expiration of six years (6), from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service. The election to fill vacant places shall be made within one year before (c) the places are to become vacant. For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July (d) 8 ROTATION OF SENATORS. 63 & 64 Vic following the day of his election, except in the cases of the first c. 12. election and of the election next after any dissolution of the *• ^^" Senate, when it shall be taken to begin on the first day of July (e) preceding the day of his election. (a) "Three years" substituted for "the third year,'' by the Consti- tution Alteration (Senate Elections) Act (1907 No. 1), s. 2. (6) " Six years " substituted for " the sixth year," by the Constitution Alteration (Senate Elections) Act (1907 No. 1), s. 2. (c) "Within one year before" substituted for "in the year at the ex- piration of which," by the Constitution Alteration (Senate Elections) Act (1907 No. 1), s. 2. (d) (e) July substituted for January, by Constitution Alteration (Senate Elections) Act (1907 No. 1), s. 2. As to rotation of Senators, see Constitution Alteration (Senate Elections), 1907 No. 1. Parliamentary Election (Commonwealth) — Senate— Election of Senators — ^Election of one declared void — ^Vacancy in place of Senator- Successor chosen by State Parliament — Refusal of Governor to issue writ for new election — Mandamus — Question of determination by Par- liament—The Constitution (63 and 64 Viet. c.l2), ss. 13, 15, 47— Judiciary Act 1903 (No. 6 of 1903), s. 33.— The Governor of a State in issuing a writ for the election of senators under s. 12 of the Constitution is actag in the capacity of the constitutional head of the State, and not as an officer of the Commonwealth within the meaning of s. 75 sub-s. (v.) of the Constitution. Upon a petition presented to the Court of Disputed Returns under the provisions of the Commonwealth Electoral Act 1902 it was declared that the election of one of the three senators returned as duly elected for South AustraUa, in place of those whose places had become vacant by effluxion of time, was void. The Parlia- ment of South AustraUa, assuming to act under s. 15 of the Constitutioji, chose a person as senator to fill the vacancy, that choice was duly certified, and the person chosen sat and voted as a senator. The candidate whose election had been declared void appUed to the High Court for a writ of mandamus to compel the Governor to issue a writ for a popular election. Held, that a mandamus will not lie to the Gover- nor of a State to compel him to do an act in his capacity of Governor. The jurisdiction in respect of mandamus conferred upon the High Court by the Constitution, s. 75 sub-s. v., has not been enlarged hy 8. 33 of the Judiciary Act 1903. Hdd, also, that the question whether, under the circumstances, there was or was not a vacancy in the represen- tation of South Australia in the Senate was a question to be decided by the Senate under s. 47 of the Constitution. Eule nisi for a writ of mandamus discharged. R. v. The Governor of South Australia, F.C., 4 C.L.R. 1497. Parliamentary Election (Commonwealth) — Senate — Election oL Senators void as to return of one Senator — ^Vacancy in Senate — ^Election of senator by State Parliament— Validity of election— Disputed Elections COMMONWEALTH OF AUSTRALIA CONSTITUTION. 9 and Qualifications Act 1907 (No. 10 of 1907), s. 2— Ttie Constitution (63 63 & 64 Vic and 64 Vict. c. 12), ss. 13, 15, 47.— The Court of Disputed Returns C. 12. having declared a periodical election of senators for the State of South SS 13-15 Australia absolutely void as to the return of one senator, the Houses of Parliament of the State, sitting together, and assuming to act under s. 15 of the Constitution, chose a senator to fill the vacancy. On a peti- tion to the Sena,te, removed into the High Court as the Court of Disputed Returns under s. 2 of the Disputed Elections and QuaUfications Act 1907, held, that the vacancy existing after the declaration by the Court of Disputed Returns was not a vacancy arising in the place of a senator before the expiraton of his term of office within the meaning of s. 15 of the Constitution, and, therefore, the choice or election of a senator by the State Parliament was null and void. Vardon v. O'Loghlin, F.C., 5 C.L.R. 201. 14. Whenever the number of senators for a State is Further increased or diminished, The Parliament of the Commonwealth rot^fd™ °^ may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation. 16. If the place of a senator becomes vacant before the casual vacancKB. expiration of his term of service the Houses of Parliament of the State for which he was chosen shall, sitting 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 Houses 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 Council 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 of a successor, whichever first happens. 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 from the date of his election until the expiration of the term. The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor- General. As to casual vacancies, see Commonwealth Electoral Act, 1902- 1911, ss. 192, 206AA (1907 No. 10, s. 5 (192 added paragraph) ) ; s. 6 (206aa) ), and Senate Elections Act, 1903 No. 2. See R. V. The Governor of South Australia, note to s. 13. Vardon v. O'Loghlin, note to s. 13. 10 QUALIFICATIONS OF SENATORS. 63 & 64 Vic. 16. The qualifications of a senator shall be the same as ^■.,i • n those of a member of the House of Kepresentatives. Quaiiflcatioiis ^ to qualifications of Senators, see Commonwealth Franchise Act, of senator. 1902 No. 8 ; and Commonwealth Electoral Act, 1902-1911, ss. 95, 96, 206a (1902 No. 19, ss. 95, 96, 1905 No. 26, s. 59 (206a) ). See also ss. 34, 43, 44, fost. Election of President. 17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President. The President shall cease 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. Absence of President. 18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence. Resignation of senator. 19. A senator may, by writing addressed to the Presi- dent, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall be come vacant. Vacancy by absence. 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. Vacancy to be notified. 21. 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 the same to the Governor of the State in the representa- tion of which the vacancy has happened. Quorum. 22. Until the Parliament otherwise provides, the pre- sence 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. COMMONWEALTH OF AUSTRALIA CONSTITUTIOK. 11 23. Questions arising in the Senate shall be determined 63 & 64 Vic. by a majority of votes, and each senator shall have one vote. ^- ^2. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the senalf.'" negative. Part UI.~The House of Representatives. pak^ "I- House of bepresenta- 24. The House of Kepresentatives shall be composed of '^^'^- members directly chosen by the people of the Commonwealth, constitution of ■' '^ ^ *^ ' House of and the number of such members shall be, as nearly as prac- Representa- ticable, 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 deter- mined, whenever necessai"y, 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, by twice the number of the senators. II. The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five mem- bers at least shall be chosen in each Original State. As to determination of number of members, see Kepresentation Act, 1905 No. 11. 25. For the purposes of the last section, if by the law of Provisions as ^ ^ ' •' to races any State all persons of any race are disqualified from voting ^^^^*"??f at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted. 12 REPRESENTATIVES IN FIRST PARLIAMENT. 63 & 64 Vic. c. 12. SS. 26-29. Representa- tives in first Failiament. 26. Notwithstanding anything in section 24, the number of members to be chosen in each State at the first election shall be as follows : — New South Wales Victoria Queensland South Australia Tasmania Twenty-three. Twenty. Eight. Six. Five. Provided that if Western Australia is an Original State, the numbers shall be as follows: — New South Wales . . . . Twenty-six. Victoria Twenty-three. Queensland Nine. South Australia . . . . Seven. Western Australia . . . . Five. Tasmania . . . . . . Five, Alteration of number of meraberB . Dnration of BouHe of Bepresenta- tives. 27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives. 28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General. Electoral Divisions. 29. Until the Parliament of the Commonwealth other- wise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate. As to electoral divisions, see Commonwealth Electoral Act (1902- 1911), SS. 12-23 (1909 No. 19, s. 4 (s. 13) ; 1909 No. 19, s. 4 (s. 14) ; 1905 No. 26, s. 9 (amending s. 15) ; 1905 No. 26, s. 10, and 1909 No. 19, s. 4 (amending s. 16) ; 1905 No. 26, s. 11, and 1909 No. 19, s. 4 (amending s. 17) ; 1905 No. 26, s. 12, and 1909 No. 19, s. 4 (amending s. 18) ; 1903 No. 9, s. 3, and 1905 No. 26, s. 13, and 1909 No. 19, s. 4 (amending s. 19) ; 1905 No. 26, s. 14 (amending s. 21) ; 1909 No. 19, s. 4, and 1911 No. 17, s. 6 (amending s. 22) ; 1905 No. 26, s. 16 (amending s. 23) ). COMMONWEALTH OF AUSTRALIA CONSTITUTION. 18 30. Until the Parliament otherwise provides, the qualifi- 63 & 64 Vic. cation of electors of members of the House of Representatives *• ^2. CO on 9-| shall be in each State that which is prescribed by the law of ' the State as the qualification of electors of the more numerous ot^^iectMs!'" House of the Parliament of the State; but in the choosing of members each elector shall vote only once. As to qualifications of electors, see Commonwealth Francliise Act (1902 No. 8). 31. Until the Parliament otherwise provides, but subject Application ot to this 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 practicable, apply to elections in the State of members of the House of Representatives. As to elections of members, see Commonwealth Electoral Act (1902-1911), ss. 92, 162, 198a, 200 (1902 No. 19, ss. 92, 162, 200 ; 1905 No. 26, s. 56 (s. 158a) ). Ciourt of summary jurisdiction— Decision of two questions either ot which supports judgment — ^The Constitution (63 and 64 Vict. c. 12), s. 31— Judiciary Act 1903 (No. 6 of 1903), s. 39 (2) (d)— Constitution Act Amendment Act 1890 (Vict.) (No. 1075), s. 282 — Commonwealth Elec- toral Act 1902 (No. 19 of 1902). — ^A Court of Summary Jurisdiction of a State exercises federal jurisdiction within the meaning of s. 32 (2) (d) of the Judiciary Act 1903, if it be necessary in the particular case for the Court to decide any question arising under the Constitution or involving its interpretation. If, however, whether that question is answered rightly or wrongly, the Court answers another question, not arising under the Constitution or involving its interpretation, and their answer to that other question enables them to decide the case, the Court does not exercise federal jurisdiction, and therefore no appeal lies to the ffigh Court from that decision. On a complaint in a Court of Petty Sessions of Victoria for work and labour done concerning an election for the House of Representatives for the Commonwealth Parliament, the defence being that s. 282 of the Constitution Act Amendment Act 1890 (Vict.) was a bar to the complaint, the Court held that that section was a " law relating to elections," and was consequently by s. 31 of the Constitution adopted and appUed to elections for the House of Repre- sentatives, and also held that, being so adopted and applied, it was re- pealed by the Commonwealth Electoral Act 1902, and therefore gave judgment for the complainant. Held, that in determining the second point the Court of Petty Sessions had not exercised federal jurisdiction. 14 APPLICATION OF STATE LAWS. 63 & 64 Vic. and therefore that no appeal lay to the High Court from their decision. C. 12. Miller v. Haweis, F.C, 5 C.L.R. 89. SS. 31-34. Writs for general election. Writs for vacancies. 32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof. See, also, s. 33, post. As to writs for vacancies and for general elections, see Common- wealth Electoral Act (1902-1911), ss. 86-89, 91, 92 (1902 No. 19, ss. 86, 87, 88, 89, 91, 92). 33. Whenever a vacancy happens in the House of Repre- sentatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker, or if he is absent from the Commonwealth, the Governor-General in Council may issue the writ. See note to s. 32, supra. QualiflcatloDS of members. 34. Until the Parliament otherwise provides, the qualifi- cations of a member of the House of Representatives shall be as follows: — I. He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of mem- bers of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the 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 the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State. As to qualifications of members, see Commonwealth Franchise Act (1902 No. 8, s. 3), and Commonwealth Electoral Act (1902-1911), ss. 95, 96, 206a (1902 No. 19, ss. 95, 96 ; 1905 No. 26, s. 59 (s. 206a) ). COMMONWEALTH OF AUSTRALIA CONSTITUTION. 16 35. The House of Representatives shall, before proceed- 63 & 64 Vic. ing to the despatch of any other business, choose a member to cc^'olrii be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a mem- fplake" "' ber 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. 36. Before or during any absence of the Speaker, the Absence of House of Representatives may choose a member to perform his duties in his absence. 37. A member may by writing addressed to the Speaker, Resignation of •'■''' r 7 member. or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant. 38. The place of a member shall become vacant if for vacancy by ^ absence. two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House. 39. Until the Parliament otherwise provides, the Quorum- presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers. 40. Questions arising in the House of Representatives voUng m^^ shall be determined by a majority of votes other than that of the presentatives. Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting-vote. Paet IV. — Both Houses of the Parliament. part iv. Both Houses OS The 41. No adult person who has or acquires a right to vote parmament. at elections for the more numerous House of the Parliament of Right of a State shall, while the right continues, be prevented by any law states. 16 RIGHTS OF ELECTORS OF STATES. 63 & 64 Vic. of the Commonwealth from voting at elections for either House - '■.!*; . of the Parliament of the Commonwealth. SS. 41-44. As to right of State electors, see Commonwealth Franchise Act (1902 No. 8), s. 4. affirmation of 42. Every Senator and every member of the House of allegiance. Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or afHrmation of allegiance in the form set forth in the Schedule to this Constitution. HoSe" °' °°° *3. A member of either House of the Parliament shall be S;her!'''* '™ incapable of being chosen or of sitting as a member of the other House. Disqualification 44. Any perSOU who — I. Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a sub- ject or a citizen of a foreign power: or II. Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any oflfence punishable under the law of the Common- wealth or of a State by imprisonment for one year or longer: or III. Is an undischarged bankrupt 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 the Common- wealth, otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons : shall be incapable of being chosen or of sitting as a senator or as a member of the House of Representatives. But subsection 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, COMMONWEALTH OF AUSTRALIA CONSTITUTION. 17 half-pay, or a pension by any person as an oflficer or member of 63 & 64 Vic. the Queen's navv or army, or to the receipt of pay as an officer ••■ •* r-r./ SS4445 or member ot the naval or military forces of the Commonwealth " ' by any person whose services are not wholly employed by the Commonwealth. Parliamentary Election (Commonwealth)— Ballot-paper, Form of — Cross withui a square — Mandatory or directory provision — Striking out name of candidate — ^Writing name of candidate — Illegal practice — Juris- diction of Court to set aside election for single act of bribery — Common Law of Parliament — Commonwealth Electoral Act 1902 (No. 19 of 1902), ss. 124, 132, 133, 139, 151, 155, 158, 163, 164, 181, 199 ; Schedule, Form P, Form Q — The Constitution, s. 44. — The provisions of Part XI. of the Commonwealth Electoral Act 1902, requiring the cross made by a voter on a ballot-paper to be placed within a square, are directory and not mandatory, and it is sufficient if they are substantially com- phed with by making a cross opposite the name of the candidate. So held by Griffith, C.J., and Barton, J., O'Connor, J., diss. The striking out of the name of a candidate not voted for does not of itself render the ballot-paper informal. Ballot-papers to be used by voters voting at a polling-place other than that for which they are enrolled, on making a declaration in Form Q in the Schedule, must be in the ordinary form, and the voter must vote by placing a cross opposite the name of a candidate. Held, therefore, that votes given by such persons by writing the name of a candidate on a blank ballot-paper are invalid. The High Court has no jurisdiction under the Statute to avoid an election on the ground that one of the candidates has by himself or his agents been guilty of illegal practices, unless there is reasonable ground for believing that the result of the election may have been affected by such illegal practices. Quaere, whether by the Common Law of the Commonwealth the High Court has jurisdiction to avoid an election on the ground of a single act amounting to bribery at Common Law, committed by or on behalf of a candidate. Chanter v. Blackwood, (No. 2), F.C. 1 C.L.R 3<) 45. If a senator or member of the House of Eepresenta- vacancy on happening of tlVeS — disqualifica- I. Becomes subject to any of the disabilities mentioned in the last preceding section : or II. Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or in- solvent debtors : or III. Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Common- wealth, or for services rendered in the Parliament to any person or State : his place shall thereupon become vacant. CONSTITUTION ACT B tion. 18 VACANCY OX DISQUALIFICATION. 63 & 64 Vic. 46. Until the Parliament otherwise provides, any person '■ ^*- 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 who sues for it in any court of competent jurisdiction. Penalty for sitting when disqualified . Disputed elections. Allowance to members. Privileges, &c., of Houses. 47. Until the Parliament otherwise provides, any ques- tion respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a dis- puted election to either House, shall be determined by the House in which the question arises. As to qualifications, vacancies or disputed elections, see Common- wealth Electoral Act (1902-1911), ss. 3, 192-206r (1902 No. 19, s. 3, amended by 1905 No. 26, s. 4 ; s. 192 (inserted by 1907 No. 10, s. 4, amended by s. 5) ; s. 193 (amended by 1905 No. 26, s. 53) ; s. 194 (amended by 1905 No. 26, s. 54) ; ss. 195, 196, 196a (inserted by 1911 No. 17, s. 41) ; s. 197 (amended by 1905 No. 26, s. 55 ; s. 198 ; s. 198a, 198b (inserted by 1905 No. 26, s. 56) ; ss. 199 202, 203-206 ; 202a, b (inserted by 1905 No. 26, s. 57) ; 206aa-dd, 206e, f (inserted by 1907 No. 10, s. 6). See R.v. The Governor of South Australia, note to s. 13. Vardon v. O'Loghlin, note to s. 13. 48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of Four Hundred Pounds a year (a), to be reckoned from the day on which he takes his seat (6). (a) As to allowances, see Parliamentary Allowances Act, 1907 No. 5 (repealing 1902 No. 20) ; now fixed at £600 a year for ordinary members, and £400 a year and emoluments of of&ce in case of Minister of State, President of Senate, Speaker, and Chairman of House of Representatives. (&) The allowance of a Senator is reckoned (1) in the case of a Senator chosen at the first election after a dissolution of the Senate — from the day of his election ; in the case of a Senator chosen to fill a place which is to become vacant in rotation — from the first day of July following his election ; (3) in the case of a Senator chosen or appointed to fill a casual vacancy — ^from the day on which his name is certified by the Governor of his State to the Governor-General. The allowance of a member of the House of Representatives is reckoned from the day of his election. 49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and COMMONWEALTH OF AUSTRALIA CONSTITUTION. 19 the committees of each House, shall be such as are declared 63 & 64 ViC. 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 Commonwealth . As to privileges of Parliament, see Parliamentary Papers Act (1908 No. 16). 50. Each House of the Parliament may make rules and buIcb and orders with respect to — orders. I. The mode in which its powers, privileges, and im- munities may be exercised and upheld: II. The order and conduct of its business and proceedings either separately or jointly with the other House. Part V. — Powers of The Parliament. paet v. POWBKS 01 The Parliament. 51. The Parliament shall, subject to this Constitution, the liave power to make laws for the peace, order, and good govern- ment of the Commonwealth, with respect to : — ^wers of the I. Trade and Commerce with other countries, and among ^^'^''*™™*- the States: See Customs 1901-1910 (1901 No. 6, 1910 No. 36) ; Sea Carriage of Goods Act, 1904 No. 14; Secret Commissions Act, 1905 No. 10 ; Commerce (Trade Descriptions), 1905 No. 16; Australian Industries Preservation, 1906-1910 (1906 No. 9, 1908 No. 5, 1909 No. 26, 1910 No. 29) ; Spirits (1906 No. 21) ; Seamen's Compensation, 1911 No. 13, repeaUng 1909 No. 29 ; Customs (Inter-State Accounts), 1910 No. 9 ; Lighthouses, 1911 No. 14. See Attorney-General for N.S.W. v. Collector of Customs for N.S.W., note to s. 114. Huddart, Parker <& Co. Proprietary v. Morehead ; Appleton V. Moorehead, note to s. 51 (xx.). Validity of Commonwealth legislation — ^Interference with State instrumentality — Limited power — ^Validity of Act going beyond power — Regulation of wages and conditions of employment — ^Jurisdiction of President of Commonwealth Court of Conciliation and Arbitration — Appeal from Registrar— Stating case — ^The Constitution (63 and 64 Vict. c. 12), ss. 51, 98, 101, 102, 104 — Commonwealth Conciliation and Arbitra- tion Actl904 (No. 13 of 1904), ss. 2, 4, 6, 17, 18, 19, 23, 24, 28-31, 40, 48.— The rule, laid down in UEmden v. Pedder (1 C.L.R. 91, at p. Ill), viz., that when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorised by the Con- stitution, is to that extent invalid and inoperative, is reciprocal. It is equally true of attempted interference by the Commonwealth with State instrumentalities. The application of the rule is not limited to taxation. Sec. 51 (xxxv.) of the Constitution does not either expressly * 20 TRABE AND COMMERCE. 63 8l 64 Vic. or by necessary implication authorise such an attempt. A State railway C. 12. is a State instrumentality within that rule. The legislative authority •• 51 (i.) of the Commonwealth Parliament under the powers contained in ss. 51 (i.) and 98 of the Constitution, so far as regards wages and terms of engagement, does not extend further than to prohibit, for causes affecting interstate trafiic, specific persons from being employed in such traffic. Quaere, whether that authority extends so far. When in the attempted exercise of a power of limited extent an Act is passed which in its terms extends beyond the prescribed limits, the whole Act is invalid, unless the invalid part is plainly severable from the valid. Held, therefore, that the Commonwealth ConciUation and Arbitration Act 1904, so far as it purports to affect State Eailways, is ultra vires and void, and consequently that an organisation consisting solely of employes on State railways was not entitled to be registered under that Act. The President of the Commonwealth Court of Conciliation and Arbitration, in hearing an appeal under s. 17 of the above Act from the decision of the registrar, granting an appHcation to register an organisation, is acting as the Court. The term " proceeding before the Court " in s. 31 (2) of the above Act includes every matter brought before the President in the exercise of the judicial functions conferred upon him by that Act. Held, therefore, that, on the hearing of an appeal from the decision of the registrar granting an apphcation to register an organisation, the President may state a case for the opinion of the High Court. Federated Amalgamated Government Eailway and Tramway Service Association v. New South Wales Eailway Traffic Employees' Association, F. C, 4 C.L.R. 488. Commonwealth legislation, validity of — ^Interference witli internal trade of State — Interpretation of terms used in Constitution— Power to make laws with respect to trade marlcs— Workers' trade marks— Regis- tration — ^Persons aggrieved — Remedy— Injunction— Parties — Trade Marks Act 1905 (No. 20 of 1905), Part Vn.— The Constitution (63 and 64 Vict. c. 12), s. 51 (i.), (xviii.). — Workers' trade marks, as dealt with and defined in the Trade Marks Act, 1905, Part VII., are not trade marks within the meaning of s. 51, pi. xviii. of the Constitution. The meaning of the terms used in the Constitution must be ascertained by their signification in 1900. It is a necessary implication from pi. i. of s. 51 of the Constitution that the power of Parhament does not extend to trade and commerce within a State, and consequently the power to legislate as to internal trade and commerce is reserved to the States by s. 107 to the exclusion of the Commonwealth. When the intention to reserve any subject matter to the States, to the exclusion of the Com- monwealth, clearly appears, no exception should be admitted to that reservation which is not expressed in clear words. Part VII. of the Trade Marks Act 1905 is in substance an attempt to regulate the internal trade of the States, not within or incidental to any of the express powers conferred on the Parhament to regulate that trade. That part of the Act is therefore ultra vires, and, though its provisions, if limited to trade and commerce between the States, would be within the com- petency of the Commonwealth Parliament, it is impossible to separate C'OMHONWEALTH OF AUSTRALIA CONSTITUTION. 21 that which is within from that which is without the power, and the 63&64VIC. ■whole is invalid. So held per Griffith, C.J., and Barton and O'Connor, C. 12. JJ. ; Isaacs and i?ig'griws,JJ., dissenting. A union of brewery employees S. 51 (i.) registered in New South Wales as a trade union, and as an industrial union under the Industrial Arbitration Act of that State, registered a mark or label in the register of workers' trade marks under Part VII. of the Commonwealth Trade Marks Act 1905. The Attorney-General for that State, at the relation of several joint stock companies carrying on the business of brewing in that State, who were also joined as plaintiffs, instituted a suit in the High Court against the employees' union and the Registrar of Trade Marks, for a declaration that the provisions as to workers' trade marks were invalid, and that conse- quently the registration was invalid, and for an order cancelling the registration and an injunction restraining the Registrar from keeping a register of workers' trade marks. Held, per Griffith, C.J., and Barton and O'Connor, JJ., Isaacs and Higgins, JJ., dissenting, (1) that the plaintiff companies were persons aggrieved by the registration, and were therefore proper plaintiffs ; (2) per Griffith, C.J., Barton, O'Connor and Isaacs, JJ., Higgins, J., dissenting, that the plaintiff Attorney- General, as representing the public of his State claiming to be injured by the legislation in question, was a proper plaintiff ; (3) per Griffith C.J., Barton and Connor, JJ., Isaacs and Higgins, JJ., dissenting, that the suit was rightly framed, injunction and not quo warranto being the appropriate remedy under the circumstances, and that the plaintiffs were entitled to the relief prayed. Per Isaacs, J. — (1) The Court cannot be called on or with propriety assume to declare an Act of Parliament unconstitutional unless such a decision is absolutely necessary, and a party seeking such a declaration must show some legal cause of complaint. (2) Order III., r. 1 of the Rules of the High Court presupposes, as a basis of any declaration made under that rule, the establishment of an existing right, and not a right dependent for its existence on possible future events. (3) The individual plaintiffs showed no right to sue, inasmuch as the claim to protect their business rested on the supposition that they might lawfully use for their own beer the mark selected by the defen- dants which would necessarily lead to deception ; and their claim to a right to register a mark resembling the defendant's mark was not special to them, but if it existed was common to the whole Australian community. (4) The Attorney-General of New South Wales had no right to sue for the purpose of protecting traders in New South Wales under the Trades Mark Act if Part VII. were valid, because those rights were general Australian rights, and not confined to traders of any par- ticular State. (5) But the Attorney-General for New South Wales had a status to complain of usurpation on the part of the Commonwealth Parliament by an unconstitutional Statute assuming to exercise, in respect of the territory of New South Wales, powers which appertain exclusively to the Parliament of that State, and afiecting the local rights of its citizens. (6) The workers' trademarks contain all the essential characteristics of a trade mark as understood at the time of the passing of the Constitution, and therefore Part VII. of the Trade Marks Act is a 22 TRADE AND COMMERCE. 63 & 64 Vic. valid exercise of the power to make laws with respect to trade marks C. 12. conferred by s. 51, pi. xviii., of the Constitution. (7) A trade union S. 51 (i.) otherwise legal can trade if so authorised by its rules. PerHiggins,J. — ■ (I.) The statement of claim does not disclose any cause of action, either in the Attorney-General for New South Wales or in the four brewery companies. As for the Attorney-General, he has no right of action for an injury done to the four breweries — the only injury alleged. The Attorney-General for New South Wales does not represent the public of Australia — ^the public affected by this Act. There is no distinctive injury alleged, or implied, to the public of New South Wales. The passing of an Act, ultra vires, and the making of an entry in pur- suance of the Act, is not a ground for injunction or other relief. If New South Wales, as a State, has a cause of action, the State should sue in its own name. As for the brewery companies, the injury alleged is future only, and either imminent or inevitable — it cannot take place until some rival brewer applies the mark to his goods ; and therefore there is no ground at present for an injunction. If Part VII. of the Act is valid, there is no injuria ; if Part VII. is invahd, there is no damnum, as the plaintiffs can lawfully apply the mark ; so that the essentials for a cause of action are wanting. No action lies for placing a person in a dilemma as to his commercial interests ; and here the dilemma wiU arrise fom the use of the label — not from the registration. (II.) The " workers' trade mark " contains all the essential charac- teristics of a " trade mark " as understood at the time of the passing of the Constitution, although not all the essential characteristics of a trade mark then enforceable in British Courts. The expression " trade mark " in the Constitution is not to be treated as a mere technical term, but is to receive its full grammatical and ordinary sense as in 1900 ; and the Constitution allows the Federal Parliament to make laws with respect to trade marks, even if used exclusively in the internal trade of a State. Even if the meaning of the expression " trade marks " in 1900 was not so wide as to include such a mark as the workers' trade mark, the Con- stitution has conferred on the Federal Parliament full power to make laws on the whole subject of " trade marks," to say what marks shall be enforceable and what shall not ; to say what marks shall be recog- nized as trade marks and what shall not ; and Part VII. does not transgress the powers conferred on the Parliament " to make laws . . . . with respect to . . . trade marks." The meaning of the expression in 1900 gives the centre, not the circumference, of the power. A trade union, otherwise legal, can trade if so authorised by its rules. Inquiry into the meaning, origin and growth of the term " trade mark," and the legislative history of the subject in England and Aus- tralia. Statement of the principles applicable to the interpretation of terms used in the Constitution. Attobney-Geneeal foe N.S.W. V. Brewery Employees Union of N.S.W. , F.C., 6 C.L.R. 469. Prohibition by proclamation — Conditional legislation— Delegation of legislative power— The Constitution (63 and 64 Vict. c.l2,s.51),sul)-ss. (i.), (il.)— Customs Act 1901 (No. 6 of 1901^, ss.52,sub-s.(g),53,56.— Sec. 52, sub-s. {g) of the Customs Act 1901, which provides that all goods C:OMMONWEALTH OF AUSTRALIA CONSTITUTION. 23 the importation of which shall be prohibited by proclamation shall be 63 & 64 Vic. prohibited imports, is not a delegation of legislative power, but condi- C. 12. tional legislation, and is within the power conferred on Parliament by S. 51 (i.) s. 51, sub-ss. i. ii., of the Constitution. The prohibition of importation is a legislative act of the Parliament itself, the effect of sub-s. (g) being to confer upon the Governor-General in Council the discretion to deter^ mine, subject to s. 56 of the Act, to which class of goods other than those specified in the section, and under what conditions, the prohibition shall apply. Reg. v. Burah (3 App. Cas. 889) applied. The express prohibition in s. 53 of the importation of opium, except under certain conditions, does not by implication exclude that article from the oper- ation of s. 5 , sub-s. (g) and s. 56. Held, therefore, that a proclamation by the Governor-General in Council, prohibiting the importation into the Commonwealth of opium suitable for smoking, was valid. Baxter V. Ah Way, F.C, 8 C.L.R. 626. Legislative powers-^Seamen's Compensation Act 1909 (No. 29 of 1909), ss. 4, 13— Order for detention of ship— Power of Judge in Chambers to set aside ex parte order — Appeal to High Court— Judicial order- Ship engaged in coasting trade — Cargo— Goods carried without freight — Validity of Federal Statute — Applicability of American decisions in construction of Commonwealth Constitution — Severability — The Conti- tution (63 and 64 Vict. c. 12), ss. 51 (1), 76 (III,), 98— Regulation of internal trade of a State — ^Trade and commerce clause — Navigation and shipping — ^Laws of admiralty and maritime jurisdiction. — A Judge in Chambers has power to set aside an order made ex parte by another Judge under s. 13 of No. 29 of 1909. An order made for the detention of a ship under that section is a judicial order, from which an appeal lies to the High Court. Per Griffith, C.J. — -A power conferred upon a judicial officer, eo nomine, to make an order to the prejudice of another, is -prima facie judicial. When a judicial order has been obtained ex parte, the party affected by it may apply for its discharge. A ship was chartered to carry cargo from New York to Australian ports. While the ship was at Adelaide, the chief officer, at the request of the charterers' agent, agreed to take charge of a small package, which had been consigned from New York to Brisbane by another ship, and had been discharged at Adelaide by mistake. The chief officer carried the package in his cabin from Adelaide to Brisbane, and delivered it there to the charterers' agents. The package was not entered in the ship's manifest, no bill of lading or shipping note was signed in respect of it, and no freight was paid for it, the transaction being treated as a volun- tary courtesy on the part of the chief officer. Hdd, that the package was not cargo within the meaning of s. 4 of No. 29 of 1909. Decision of Gordon, J., In re Wikon (27 W.N. (N.S.W.) 73), reversed on this point. The provisions of s. 4 of the Seamen's Compensation Act 1909, in so far as they purport to regulate purely intra-State trade, are ultra vires s. 51 (1) of the Constitution. Sec. 98 of the Constitution does not enlarge the ambit of the trade and commerce clause in s. 51 (1), but is merely explanatory of the trade and commerce powers. Per Griffith, C.J., Barton, and Isaacs, JJ. — The validity of these provisions of s. 4 24 TRADE AKD COMMERCE. 63 & 64 Vic. cannot be supported as being an exercise of tke jurisdiction conferred C. 12. upon the Parliament by s. 76 (m). Per Barton and Isaacs, J J. — Tke S. 51 (i.) rule of construction adopted by the American Courts as to the jurisdic- tion conferred by Art. 3, s. 2 of the American Constitution, is not applic- able to the construction of s. 76 (iii). Per Griffith, C.J., Barton, O'Connor, and Isaacs, JJ. (Higgins, J., dissenting) that, the Parliament having in plain language expressed its intention that the test to be applied in determining what ships come within the Seamen's Compen- sation Act 1909 is whether the ship is engaged in trade between port and port, and not whether she is engaged in trade between State and State, the valid and invalid provisions of the Act are inseparable, and the whole Act is invalid. Per Isaacs, J. — The valid and invaUd pro- visions of the Act as to the coasting trade being inseparable, the Act so far at least as it refers to that trade is invalid. Per Higgins, J. — The Act having prescribed a duty as to individual seamen, some of whom are within, and some of whom are without the power of ParUament, the Act is invalid so far as regards the seamen who are outside the power. But as there is no reason for thinking that if Parhament had understood the limits of its power it would not have passed the Act so far as regards the seamen who are within the power, the Act is valid as to these seamen. It is not a matter of the words that happen to be used, but of substance — are the things severable ? There is no difficulty in this case in severing the valid from the invalid prescription — even verbally. Decision of Gordon, J. : In re Wikon (27 W.N. (N.S.W.) 73), reversed. Owners of S.S. Kalibia v. Wilson, 11 C.L.R. 689. II. Taxation ; but so as not to discriminate between States or parts of States : See Customs, 1901-1910 (1901 No. 6, 1910 No. 36). Beer Excise 1901-1912 (1901 No. 7, 1912" No. 23). Distillation (1901 No. 8). Excise (1901 No. 9). Spirits (1906 No. 21). Land Tax Assessment 1910-1912 (1910 No. 22, 1911 No. 12, 1912 No. 37). Excise Tariff (1902 No. 11). Customs Tariff 1902-1911. Sugar Rebate Abolition (1903 No. 3). Excise Tariff (1905 No. 24), repealed by Sugar Excise Repeal (1912 No. 25). Customs Tariff (1906 No. 14), repealed by 1908 No. 7. Excise Tariff (1906 No. 16), held invalid in The King v. Barger ; CommonweaUh v. McKay (6 C.L.R. 41) ; re- pealed by Sugar Excise Repeal (1912 No. 25). Customs Tariff (South African Preference) (1906 No. 17). Excise Tariff (1906 No. 20). Excise Tariff (1908 No.' 8). COM.MONWEALTH OF AUSTRALIA CONSTITUTION. 25 S. 51 (ii.) See Excise Tariff (Starch) (1908 No. 14). 63&64ViC. Bank Notes Tax (1910 No. 14). ^ ^iJ^:. Excise (Sugar) (1910 No. 17), repealed by Sugar Excise Repeal (1912 No. 25). Land Tax (1910 No. 21). See Attorney-General for N.S.W. v. Collector of Customs for N.S.W., note to s. 114 ; Baxter v. Ah Way, note to s. 51 (i) ; Osborne v. Com- monwealth, note to s. 55 ; Sydney Corporation v. Commonwealth, note to s. 114. Regulation of conditions of labour — Commonwealth legislation, validity of — Form of Act — Substance of Act — ^Motive and object of legis- lation — ^Direct and indirect effect — Power of taxation — ^Method of dis- crimination — ^Interference with domestic affairs of State — Implied prohibition — ^Excise Act dealing with other matters — Discrimination — Preference— Excise Tariff 1906 (No. 16 of 1906)— The Constitution (63 and 64 Vict. C. 12), ss. 51, 55, 90, 99. — In determining whether a particular law is or is not within the power of the Commonwealth Parhament to enact, regard must be had to its substance rather than to its literal form. The circumstance that an indirect effect may be produced by the exer- cise of an admitted power of legislation is irrelevant to the question whether the legislature is competent to prescribe the same effect by direct law. So are the motives which actuated the legislature and the ultimate end desired to be attained. So long as the limits of the power of taxation are not transgressed. Parliament may select the persons or the things in respect of which the exercise of power is to operate. If the control of the domestic affairs of the States is in any particular forbidden by the Constitution, either expressly or by necessary implica- tion, the power of taxation cannot be exercised so as to operate as a direct interference with those affairs in that particular. The selection of a particular class of goods produced in Australia for taxation by a method which makes the liability to taxation dependent upon conditions to be observed in the industry in which they are produced is as much an attempt to regulate those conditions as if the regulation were made by distinct enactment. The Excise Tariff 1906 (No. 16) is not an Act imposing duties of excise, but is an Act to regulate the conditions of manufacture of agricultural implements, and is therefore not an exercise of the power of taxation conferred by the Constitution. Even if it were otherwise within the competence of the Commonwealth Parliament to deal with the concitions of labour, the Excise Tariff 1906 (No. 16), which, if valid, would have the effect of regulating the conditions of manufacture, would be invalid as deahng with matters other than duties of Excise contrary to s. 55 of the Constitution. Even if the term " taxation," uncontrolled by any context, were capable of including the indirect regulation of the domestic affairs of the States by means of taxation, its meaning in the Constitution is limited by the implied prohibition against direct interference with matters reserved exclu- sively to the States. The Excise Tariff 1906 (No. 16), if otherwise valid, 26 TAXATION. 63 & 64 Vic. is invalid on the ground that it authorises discrimination, and therefore C. 12. discriminates, between States or parts of States within the meaning S. 51 (ii.) of s. 51 (ii.) of the Constitution, and authorises the giving, and therefore gives, preference to orie State or a part thereof over another State or a part thereof within the meaning of s. 99 of the Consti- tution. Hdd, therefore {Isaacs and Higgins, JJ., dissenting), that the Excise Tariff 1906 (No. 16) is invalid. Per Isaacs and Higgins, JJ. — -(1) The powers substantively granted to the Com- monwealth by the Constitution may be exercised to their utmost extent, and in as plenary a manner as if the Commonwealth were a unitary State, subject only to the express limitations found in the Con- stitution itself and [per Isaacs, J.] to the necessary freedom of the States to exercise without interference the powers reserved to them. (2) Com- monwealth powers are not to be limited by first assuming the extent of State powers. The reserved powers of the States are those which rem in after full effect is given to the powers granted to the Commonwealth, and cannot control the extent of those constitutional grants. (3) If a legislative power is once granted, neither its abuse, nor its consequences, nor any purpose, motive, or object of the legislature can render its exercise illegal ; any remedy for abuse, so long as the limits of the power are not exceeded, must rest with the electors, and not with the Court. (4) The objections raised to the validity of the Excise Tariff 1906 (No. 16) on the ground alleged that it in substance regulates conditions of remuneration of labour, are in reality objections based on abuse of power, consequences, and the purpose, motive, and object of Parliament, and are therefore beyond the competency of the Court to entertain. (5) Compulsory contribution to the consolidated revenue, demanded irrespective of any legality or illegality in the circumstances upon which the liability depends, is taxation. (6) Pecuniary penalty, imposed as a punishment for an unlawful act or omission, is regulation. (7) The Excise Tariff 1906 (No. 16) should be construed according to the natural meaning of the language used by the legislature, and should not be turned by an argument of equivalence of effect into an enactment of a totally different character. (8) Properly construed, the Act imposes taxation upon implements which are not in fact manufactured under described conditions to be ascertained in prescribed modes, but does not render any conditions unlawful. It is consequently not a regulative Act which a State could pass in the same terms, but an exercise of the power of Excise ta ation, and, if passed by a State legislature, would be invalid. (9) As the Act merely imposes Excise taxation, s. 55 of the Constitution is not contravened. (10) The proviso does not dis- criminate between localities at all, but describes standards applicable to Australia generally, irrespective of its division into States or parts of States, and does not offend against the prohibition contained in s. 51 (u.) of the Constitution. Per Isaacs, J. — The discrimination forbidden by s. 51 (ii.) of the Constitution is between localities considered and treated as States and parts of States, and not as mere Australian locaUties or parts of the Commonwealth considered as a single country. The King V. Bargbr ; Commonwealth v. McKay, F.C, 6 C.L.R. 41. COMMONVVEALTH OF AUSTRALIA CONSTITUTION. 27 III. Bounties on the production or export of goods, but so 63 & 64 Vic. that such bounties shall be uniform throughout the *•■ ' .". Commonwealth : '" ^^ '"'■' See Sugar Bounty, 1903 No. 4. Sugar Bounty (1905-1912), repealed by Sugar Bounty Aboli- tion, 1912 No. 26. Bounties 1907-1912 (1907 No. 12, 1912 No. 34). Manufactures Encouragement 1908-1912 (1908 No. 26, 1912 No. 28). Shale Oil Bounties (1910 No. 2.S). Wood Pulp and Rock Phosphate Bounties (1912 No. 32). IV. Borrowing money on the public credit of the Common- wealth : See Audit 1901-1912, ss. 55-59 (1901 No. 4, ss. 55, 59, 1906 No. 8, 1909 No. 4, 1912 No. 6). Naval Loan Repeal (1910 No. 6), repealing Naval Loan (1909 No. 14). Commonwealth Bank (1911 No. 18), ss. 53-58. Commonwealth Inscribed Stock 1911-1912 (1911 No. 20, 1912 No. 39). Loan (1911 No. 24, 1912 No. 22). V. Postal, telegraphic, telephonic, and other like services : See Post and Telegraph 1-901-1912 (1901 No. 12, 1910 No. 28, 1912 No. 30). Post and Telegraph Kates 1902-1911 (1902 No. 13, 1906 No. 10, 1911 No. 8). Commonwealth Electoral (1902-1911), ss. 206d, 207, 208 (1902 No. 19, ss. 207, 208 ; 1905 No. 26, s. 59 ; 1911 No. 17, s. 44, s. 206d). Wireless Telegraphy (1905 No. 8). Referendum (Constitution Alteration) 1906-1912, ss. 35, 37, 38, 39 (1906 No. 11, 1909 No. 20, s. 8, s. 35 ; 1912 No. 17, 1912 No. 35, s. 16, ss. 37, 38, 39). Telegraph (1909 No. 7). Purchase Telephone Lines Acquisition (1911 No. 9). Pacific Cable (1911 No. 25). VI. The naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth : 28 DEFENCE. 63 & 64 Vic. See Coast Defence Appropriation, 1908 No. 19. C. 12. Naval Agreement 1903-1912 (1903 No. 8, 1912 No. 10). S. 51 (Vi.) Defence 1903-1912 (1903 No. 20, 1904 No. 12, 1909 No. 15, 1910 No. 37, 1911 No. 15, 1912 No. 5). Telegraph (1909 No. 7). Naval Defence 1910-1912 (1910 No. 30, 1911 No. 16, 1912 No. 21). VII. Light-liouses, light-ships, beacons, and buoys: See Lighthouses (1911 No. 14). VIII. Astronomical and meteorological observations: See Meteorology (1906 No. 3). IX. Quarantine: See Quarantine 1908-1912 (1908 No. 3, 1912 No. 15). X. Fisheries in Australian waters beyond territorial limits : XI. Census and statistics : See Census and Statistics (1905 No. 15). XII. Currency, coinage, and legal tender: See Coinage (1909 No. 6). AustraUan Notes 1910-1911 (1910 No. 11, 1911 No. 21). xiii. Banking, other than State banking; also State bank- ing extending beyond the limits of the State con- cerned, the incorporation of banks, and the issue of paper money: See Austrahan Notes 1910-1911 (1910 No. 11, 1911 No. 21). Commonwealth Bank (1911 No. 18). XIV. Insurance, other than State Insurance; also State Insurance extending beyond the limits of the State concerned : See Life Assurance Companies (1905 No. 12). Marine Insurance (1909 No. 11). COMMONWEALTH OF AUSTRALIA CONSTITUTION. XV. Weights and measures : XVI. Bills of exchange and promissory notes: See Bills of Exchange 1909-1912 (1909 No. 27, 1912 No. 24). 2» 63 & 64 Vic. c. 12. S. 51 (XV.) XVII. Bankruptcy and insolvency : XVIII. Copyrights, patents of inventions and designs, and trade marks : See Patents, 1903-1909 (1903 No. 21 ; 1909 No. 17). Trade Marks 1905-1912 1905 No. 20, 1912 No. 19). (Part VII. (Workers' Trade Marks), declared ultra vires : A.-G. (N.S.W.) V. Brewery Employees' Union of N.S.W. 6 C.L.R. 469.) Copyright (1912 No. 20), repealing 1905 No. 25. Designs 1906-1912 (1906 No. 4, 1912 No. 14). Patents, Trade Marks and Designs (1910 No. 19). See Attorney-General for New South Wales v. Brewery Employees' Union of N.S.W., note to s. 51 (ii.). XIX. Naturalization and aliens: See Naturahzation (1903 No. 11). Immigration 1901-1912, ss. 4a, 4b (Immigration Restriction, 1901-1910, 1901 No. 17, 1905 No. 17, s. 8, ss. 4a, 4b ; 1908 No. 25, 1910 No. 10, Immigration, 1912 No. 38). Extra-territoriality — Admission of aliens as residents upon con- ditions — ^International law — ^Right to expel alien friends — The Constitu- tion (63 and 64 Vict. e. 12), s. 51 (xix.), (xxvi.), (xxix.), (xxx.) — Pacific Islands Labourers Act 1901 (No. 16 of 1901), s. 8. — It is an attribute of sovereignty that every State is entitled to decide what aliens shall or shall not become members of its community. The right of a nation to expel or deport foreigners from a country is an unquahfied and un- deniable as the right to exclude them from entering the country, whether they are alien friends or enemies. This power could be delegated by the Imperial authority to the Commonwealth Parliament and was properly delegated by virtue of the Constitution, s. 51, which gave the Parlia- ment fuU authority to legislate as a sovereign body on the subject of (inter alia) " naturalisation and aliens." Semble : In Australia such a power can be exercised by the Executive only when authorised by Statute. Appellant was a Kanaka labourer introduced. into Queensland under the special conditions of the State Pacific Island Immigration Act (Qd.) (44 Vic. No. 17). Under s. 8 of the Federal Pacific Island Labourers Act 1901, a Court of summary jurisdiction, upon being satisfied that a Pacific Island labourer, found in the Commonwealth before 31st December, 1906, and 30 NATURALIZATION AND ALIENS. 63 & 64 Vic. reasonably supposed not to be employed under agreement, C. 12. is .not or has not been so employed for a month past, may order his S. 51 (xix.) deportation from Australia. Appellant was brought before a police magistrate, who declared himself satisfied, and ordered his deportation. HelA, that the right to expel involved the right to do all things necessary to make the expulsion efiective, among which was necessarily included the act of deportation, to the extent of the complete extrusion of the alien from the territorial borders of the State. The extra-territorial constraint necessarily consequent upon the act of expulsion was im- material to the validity of the right of deportation. Held, further, that the right of expulsion was not Hmited to ordering the deportation of the alien to the place whence he came ; the right was general and unlimited, and could be exercised by the deporting State in whatever manner and to whatever place was necessary for effective deportation. Semble : A foreigner who enters a sea-girt State, deportation from which must necessarily involve extra-territorial constraint, may be assumed to consent to such constraint as a condition of his admission to the country in the event of his deportation becoming necessary. RoBTBLMES V. Brenan, F.C, 4 C.L.R. 395. XX. Foreign corporations, and trading or financial cor- porations formed within the limits of the Common- wealth : Commonwealth legislation, validity of — Interference with internal trade and commerce of States— Power to make laws with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth " — ^Limits of power — Creation of corporations — Control of corporations, their status, capacities and contracts — Inquiry by Comptroller-General of Customs — Compulsory answers — Judicial power of Commonwealth— Trial by jury- Interstate commission — Australian Industries Preservation Act 1906 (No. 9 of 1906) (amended by Australian Industries Preservation Act 1907 (No. 5 of 1908), ss. 4, 5, 7, 8, 15B— The Constitution (63 and 64 Vict. c. 12), ss. 51 (i.), (XX.), 71, 80, 101.]— By the whole Court, Sec. 15b of the Aus- tralian Industries Preservation Act 1906 (as amended by the Australian Industries Preservation Act 1907) is intra vires the Commonwealth Parliament and valid. The inquiry authorised by that section is not inconsistent with the right to trial by jury conferred by s. 80 of the Constitution. Such an inquiry is not an exercise of the judicial power of the Commonwealth. Such an inquiry is not an incident of the execu- tion and maintenance of the provisions of the Constitution relating to trade and commerce within the meaning of s. 101 of the Constitution, and need not be entrusted to the Inter-State Commission. By the whole Court, s. 51 (xx.) of the Constitution does not confer on the Commonwealth Parliament power to create corporations, but the power is limited to legislation as to foreign corporations and trading and financial corporations created by State law. By the Court {Isaacs, J., dissenting), ss. 5 and 8 of the Ausstralian Industries Preservation Act COMMONWEALTH OF AUSXKALIA CONSTITUTION. 31 1906 are uhra vires the Commonwealth. Parliament and invalid. By63&64ViC. Griffith, C.J., and Barton, J., s. 51 (xx.) of the Constitution confers C. 12. upon the Commonwealth Parliament power to prohibit foreign cor- S. 51 (XX.) porations and trading and financial corporations formed under State laws from engaging in trade and commerce within a State, as distin- guished from trade and commerce between States or with foreign countries, or to impose conditions subject to which they may engage in such trade, and commerce, but does not confer upon the Common- wealth Parliament power to control the operations of such corporations which lawfully engage in such trade and commerce. By O'Connor, J., the power conferred by s. 51 (xx.) of the Constitution is limited to the making of laws with respect to the recognition of corporations as legal entities within the Commonwealth, and does not include a power to make laws for regulating and controlling the business of corporations when once they have been so recognised and are exercising their cor- porate functions by carrying on business in the Commonwealth. By Isaacs, J., s. 51 (xx.) confers on the Commonwealth Parliament power to control the conduct of the specified corporations in relation to outside persons, but not the powers and capacities of corporations, and ss. 5 and 8 of the Australian Industries Preservation Act 1906, are a valid exercise of such power. By Higgins, J., the power conferred by s. 51 (xx.) of the Constitution of the Commonwealth Parliament is a power to legislate with respect to the classes of corporations named, as corpora- tions — that is, to regulate the status and capacity of such corporations and the conditions on which they m.ay be permitted to carry on business; but does not include a power to regulate the contracts into which cor- porations may enter within the scope of their permitted powers. Sees. 5 and 8 of the Australian Industries Preservation Act 1906 are not legislation with respect to such corporations, but legislation with respect to trade and commerce. Huddaet, Parke jj and Co. Propeietary LI^aTED V. MOOREHEAD. APPLETON V. MoOREHEAD, F.C., 8 C.L.E. 330. XXI. Marriage: XXII. Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guard- ianship of infants : XXIII. Invalid and old age pensions : See InvaUd and Old Age Pensions 1908-1912 (1908 No. 17, 1909 No. 3, 1909 No. 21, 1912 No. 27). Invalid and Old Age Pensions Appropriation 1908 No. 18 ; 1909 No. 2 ; 1910 No. 4 ; 1912 No. 16. Maternity Allowance (1912 No. 8). XXIV. The service and execution throughout the Common- wealth of the civil and criminal process and the judgments of the courts of the States: See Service and Execution of Process 1901-1912 (1901 No. 11, 1905 No. 5, 1912 No. 18). 32 STATE LAWS. 63 & 64 Vic. XXV. The recognition throughout the Commonwealth of the S 51 (rxv ) laws, the public acts and records, and the judicial proceedings of the States: See State Laws and Records Recognition (1901 No. 5). XXVI. The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws: See Pacific Island Labourers 1901-1906 (1901 No. 16, 1906 No. 22) Post and Telegraph 1901-1912, s. 16 (1901 No. 12, s. 16). White labour only to be employed in carriage of mails, Commonwealth Franchise (1902 No. 8), s. 4 (disquaUfications on voting). Sugar Bounty (1903 No. 4), s. 2 (bounty on white labour grown sugar). Sugar Bounty (1905-1912), s. 10 (1905 No. 23, s. 10),repealed by Sugar Bounty Abohtion (1912 No. 26) (aboriginal natives employed in sugar growing). Naturalization (1903 No. 11), s. 5 (who may apply for certificates of naturaUzation). Bounties (1907-1912), ss. 3, 4 (1907 No. 12, ss. 3, 4, bounties on certain white labour products, with a proviso in favour of aboriginal natives). Invalid and Old Age Pensions 1908-1912, ss. 16, 21 ; 1908 No. 17, ss. 16, 21 ; 1909 No. 3, s. 11, s. 16), persons disquaUfied from receiving pensions. xxvii. Immigation and emigration: See Pacific Island Labourers 1901-1906 (1901 No. 16, 1906 No. 22). Immigration 1901-1912 (Immigration Restriction 1901-1910 (1901 No. 17, 1905 No. 17, 1908 No. 25, 1910 No. 10; Immigration, 1912 No. 38). Contract Immigrants (1905 No. 19). Emigration (1910 No. 26). Immigration restriction — " Immigrant ' ' meaning of —Australian citizen — Australian nationality — The Constitution (63 and St Vict. c. 12), s. 51— Immigration Restriction Act 1901 (No. 17 of 1901.)— Semhh, there is no Australian nationality as distinguishable from British nationality, so as to limit the power of the Commonwealth under s. 51 of the Constitution to exclude persons from AustraUa. Qua&re, whether the power of the Parliament under s. 51 of the Constitution, to deal with " immigration," extends to the case of Australians absent from Australia on a visit animo revertendi. Attorney-General for THE Commonwealth v. Ah Sheung, F.C, 4 C.L.R. 949. Immigration restriction — "Immigrant" meaning of — Member of Australian community returning from abroad — Home— Domicil— Abandonment of home — Infant — Presumption of legitimacy — Dictation test — ^The Constitution (63 and 64 Vict. c. 12), s. 51 (xxvii.) — Immigration COMMONWEALTH OF AUSTRALIA CONSTITUTION. 33 Restriction Act 1901 (No. 17 of 1901), s. 3— Immigration Restriction 63 & 64 Vic. Act 1905 (No. 17 of 1905), ss. 4, 8.— A person whose permanent home is c. 12. in AustraUa and who, therefore, is a member of the AustraUan com- s. 51 (xxvii.) munity, is not, on a^ri^'ing in Australia from abroad, an immigrant in respect of whose entry the Parliament of the Commonwealth can legis- late under the power conferred by s. 51 (xxvii.) of the Constitution to make laws with respect to immigration, and, therefore, such a person is not an immigrant within the meaning of the Immigration Restriction Acts 1901-1905. Held, on the evidence {Isaacs and Higgins, JJ., dissenting), that the illegitimate son of a Victorian woman who had his original home in Victoria, but at the age of five years was taken by his father, a Chinese, to China, where he remained for 26 years, had never abandoned that home, and, therefore, on his return to Australia was not an immigrant within the Immigration Restriction Acts 1901- 1905. Held, also (Higgins, J., dissenting), that no presumption of legitimacy arises in the case of a child born in Victoria in 1876 to a white woman and a Chinese who lived together as man and wife for several years. An officer of Customs intending to put the dictation test to the defendant as provided by s. 3 (a) of Immigration Restriction Act 1901 (as amended by s. 4 of the Immigration Restriction Amend- ment Act 1905), told him he would read the passage slowly and then, if the defendant said he could write it, he, the officer, would read again slowly. The ofEcer then read the passage, slowly, the defendant said that he could not write it, the passage was not read again, and the officer told the defendant he was a prohibited immigrant. Held, by O'Connor, Isaacs and Higgins, JJ., that the dictation test was not pro- perly put so as to make the defendant a prohibited immigrant. Potter V. MiNAHAN, F.C., 7 C.L.R. 277. XXVIII. The Influx of criminals : See Immigration 1901-1912 (Immigration Restriction 1901-1910, s. 3 (1901 No. 17, s. 3, 1905 No. 17, s. 4 (6) s. 3 ; Immi- gration, 1912 No. 38, s. 3, s. 3). XXIX. External affairs : See Extradition (1903 No. 12). High Commissioner (1909 No. 22). See Robtelmes v. Brennan, note to s. 51 (xix.). Fugitive offenders — ^Application of Act to States of Commonwealth — Power of Commonwealth Parliament to deal with fugitive offenders— The Constitution, ss. 51 (xxix.), 108 — Offence committed partly outside Colony — Jiuisdiction of Parliament of Colony — Statement of offence in indorsed warrant— Evidence— Fugitive Offenders Act 1881 (44 and 45 Vict. C. 69), ss. 3, 5, 6. — Unless the Commonwealth Parliament has under the Constitution power to make laws such as are referred to in s. 32 of the Fugitive Ofienders Act 1881, or to legislate g«nerally as to the surrender of fugitive offenders between the Commonwealth and other parts of the British Dominions, the establishment of the Commonwealth CONSTITUTION ACT C 34 FUGITIVE OFFENDERS; 63 & 64 Vic. has had no efEect whatever upon the position and authority of the States C. 12. with regard to that Act. Semble, the Commonwealth Parliament has S. 51 (xxix.) under s. 51 (xxix.) of the Constitution power to legislate generally as to the surrender of fugitive offenders from other parts of the British Dominions. Whether the Commonwealth Parliament has such power or not, the Fugitive Offenders Act 1881 was at the date of federation a law in force in each of the colonies of Australia, and, by virtue of s. 108 of the Constitution, remains in force until the Commonwealth Parliament makes provision in that behalf, and should therefore be interpreted as though there had been no federation. Held, therefore, that the Governor, the Judges, and the magistrates of Victoria can exercise in Victoria jurisdiction under the Fugitive Offenders Act 1881 notwithstanding federation. Sec. 76 of Law No. 47 of 1887 of the colony of Natal provides that :■ — " If any person who is adjudged insolvent or has his afiairs liquidated by arrangement after the presen- tation of an insolvency petition by or against him. or at the commence ■ ment of the liquidation or within four months before such presentation or commencement quits Natal and takes with him or attempts or makes preparations for quitting Natal and for taking with him. any part of his property to the amount of £20 or upwards which ought by law to be divided amongst his creditors he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of an ofience punishable with imprisonment for a time not exceeding two years with or without hard labour." Held, that such law was not ultra vires the colony of Natal. An indorsed warrant sufficiently mentions, within the meaning of s. 5 of the Fugitive Offenders Act 1881, the ofience with which an alleged fugitive ofiender is charged, if the charge is substantially sufficient according to the law of the State where the warrant was issued. The Attorney-General of Natal having certified that " the crime of contra- vention of s. 76 of the Insolvency Law, No. 47 of 1889 ... is punishable in the Colony of Natal," &c. : Held, that an indorsed warrant which alleged that the defendant had committed " the crime of contravening s. 76 of Law 47, 1887 (Natal)," was sufficient to give a magistrate in Victoria jurisdiction to commit the defendant to prison to await his return to Natal. The persons whose duty it is to ad- minister the Fugitive Ofienders Act 1881 in the part of the British Dominions where an alleged fugitive ofiender is arrested, must ascertain as best they can the law of the State from which such fugitive has come. Depositions made in Natal in proceedings instituted in that colony, which are the basis of a criminal charge there against a person who has come to Victoria, may be received in evidence before a magstrate, on proceedings under the Fugitive Ofienders Act 1881 to have that person sent back to Natal, there to be tried on that charge. Decision of - Supreme Court of Victoria : In re McKehey ([1906] V.L.E. 304 ; 27 A.L.T. 198), affirmed. McKelvey v. Meagher, F.C, 4 C.L.R. 265. XXX. The relations of the Commonwealth with the islands of the Pacific : See Pacific Island Labourers 1901-1906 (1901 No. 16, 1906 No. 22). See Robtlemes v. Brenncm, note to s. 51 (xix.). COMMONWEALTH OF AUSTRALIA CONSTITUTION. 36 -XXXI. The acqnisition of property on just terms from any63&64Vic. State or person for any purpose in respect of which C. 12. _ the Parliament has power to make laws: (xxxi.) See Property for Public Purposes Acquisition (1901 No. 13), repealed by Lands Acquisition (1906 No. 13). Patents 1903-1909, s. 19 (1903 No. 21, s. 19). ^^eat of Government (1904 No. 7), s. 4, repealed by 1908 No. 24. Lands Acquisition 1906-1912 (1906 No. 13, 1912 No. 39). Seat of Government (1908 No. 24), s. 6. Seat of Government Acceptance (1909 No. 23), s. 10, amended by Seat of Government (Administration), 1910 No. 25 s. 10. Kalgoorlie to Port Augusta Railway (1911 No. 7, 1912 No. 3). Parchase Telephone Lines Acquisition (1911 No. 9). Lighthouses (1911 No. 14), ss. 5, 6. Stamp duty on transfer of property— Taxation of Commonwealth instrumentality by State — ^Land in State acquired by Commonwealth for public purposes — Statute not binding on Crown — Stamp Duties Act (N.S.W.), (No. 27 of 1898), s. 23— Real Property Act 1900 (N.S.W.), (No. 25 of 1900)— Property for Public Purposes Acquisition Act 1901 (No. 13 of 1901), s. 3— The Constitution, s. 51.— By s. i, schedule 2 of the Stamp Duties Act 1898 (N.S.W.) ad valorem duty is payable on every conveyance or transfer on sale of any property ; and s. 23 of that Act provides that no unstamped instrument required by the Act to be stamped shall be registered or capable of being registered in any office. Held, that a memorandum of transfer of land held under the Real Property Act 1900 (N.S.W.), to the Commonwealth for Commonwealth purposes under s. 3 of the Property for PubUc Purposes Acquisition Act 1901, is not liable to stamp duty under s. 2, sched. 4, and therefore the Commonwealth is entitled to have such instrument marked exempt by the Commissioner for the purpose of registration under the Real Property Act. The Stamp Duties Act (N.S.W.) was not intended to impose, and did not impose, any obUgation upon the Crown when it was passed, and there- fore does not now impose any obligation upon the Commonwealth. Even if the Act, when passed, did affect the Crown as representing the community of New South Wales, it could not, after the establishment of the Commonwealth be construed as affecting the Crown as represent- ing the Commonwealth. Held, further, that the transfer by the vendor was a necessary instrumentality of the Commonwealth for the acquisi- tion of land for pubhc purposes, and was therefore exempt from State taxation under the rule laid down in D'Emden v. Pedder (1 C.L.R. 91, at p. 111). Snyder v. Bettman (190 U.S. 249), and other cases in the 36 ACQUISITION OF PROPERTY. 63 & 64 Vic. United States of America, as to the validity of a State law imposing C. 12. succession duty on federal property, distinguished. Commonwealth 8.51 (xxxi.) V. New South Wales, F.C, 3 C.L.R. 807. Fugitive offenders — ^The Constitution, s. 51 (xxxi.). — Semble, the Commonwealth Parliament has, under s. 51 (xxix.) of the Constitution, power to legislate as to the surrender of fugitive offenders from other parts of the British dominions. McKelvey v. Meagher, F.C, 4 C.L.R 265. XXXII. The control of railways with respect to transport for the naval and military purposes of the Common- wealth : See Defence 1903-1912, ss. 64-66, 80 (1903 No. 20, ss. 64-66, 80 • 1904 No. 12, s. 8, s. 64). XXXIII. The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State: XXXIV. Railway construction and extension in any State with the consent of that State: See Kalgoorlie to Port Augusta Railway 1911 No. 7, 1912 No. 3. Kalgoorlie to Port Augusta Railway Survey (1907 No. 4). Pine Creek to Katherine River Railway Survey, 1912 No. 9. XXXV. Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State: See Commonwealth Conciliation and Arbitration (1904-1911), declared ultra vires and void, so far as it purports to afiect State Railways : Federated Amalgamated Government Railway and Tramway Service Assddation v. N.S.W. Railway Traffic Employees^ Association, 4 C.L.R. 488 ; and s. 38 (/) (g), ultra vires and invahd, so far as it pur- ports to declare a common rule in any particular industry : Australian Boot Trade Employees' Federation v. Why- hrow and Others (11 C.L.R. 311). Contract Immigrants (1905 No. 19), s. 12. Arbitration (Public Service) (1911 No. 11). See Federated Amalgamated Government Railway & Tramway Service Association & N.S.W. Railway Traffit^ Employees' Association, note to s. 51 (i.). COMilOXWEALTH OF AUSTRALIA CONSTITUTION. 37 Industrial Conciliation and Arbitration (Commonwealth)— Registrar 63 & 64 Vic. tion of association— Validity of legislation— Association of employees c. 12. in one State — ^Incorporation of organization— " Industry " " Industrial S. 51 (xxxv.) dispute " and " Extending beyond he limits of any one State," meaning of — Appeal to High Court from President of Commonwealth Court of Conciliation and Arbitration — Commonwealth Conciliation and Arbitra- tion Act 1904 (No. 13 of 1904), ss. 4, 55, 58,60,65, 73— The Constitution (63 and 64 Vict. c. 12), s. 51 (xxxv.), xxxix.). — The provisions of the Commonwealth Conciliation and Arbitration Act 1904 in respect of the registration of associations as organizations, particularly in so far as they permit the registration of an association of employers or employes in an industry in one State only, and provide for the incorporation of organizations when registered, are valid as being incidental to the power conferred on the Commonwealth Parliament by s. 51 (xxxv.) of the Constitution. Judgment of the President {Higgins, J.), affirmed. Observations of the President as to his power to state a case for the opinion of the High Court. An appeal fies to the High Court from a decision of the President of the Commonwealth Court of Concihation and Arbitration dismissing an appeal to him from a decision of the Industrial Eegistrar disallowing objections to the registration of an association under the Commonwealth Conciliation and Arbitration Act 1904. Observations as to the meaning of the expressions " Industry," " Industrial Dispute," and " Extending beyond the limits of any one State." JuMBUNNA Coal Mine v. Victorian Coal Miners' Associa- tion, F.C., 6 C.L.R. 309. Industrial Conciliation and Arbitration (Commonwealth) — Juris- diction of Commonwealth Court of Conciliation and Arbitration — In- dustrial dispute extending beyond the limits of one State — Undertaking carried on by one employer in two States — Relationship of employer and employe — ^Temporary cessation of work owing to dispute — Conditions precedent to jurisdiction — Acquiescence in jwisdiction by party seeking prohibition — ^Discretion of High Court— Excess of jurisdiction— ^Matters not in dispute between the parties — Submission of dispute by plaint — Prohibition quoad — Commonwealth Conciliation and Arbitration Act 1904 (No. 13 of 1904), ss. 19 (b), 38 (u)— The Constitution (63 and 64 Vict. c. 12), s. 51 (xxxv.), (xxxix.). — Where the employes engaged in different branches of one industry carried on in different States by a single employer take concerted action in making a common demand on their employer for certain conditions of employment, and the em- ployer, understanding that the demand is so made on behalf of all the employes, refuses to accede to it, there arises an industrial dispute extending beyond the limits of one State within the meaning of s. 51 (xxxv.) of the Constitution, cognizable by the Commonwealth Court of Conciliation and Arbitration. The Commonwealth Court of Concilia- tion and Arbitration cannot exercise jurisdiction under s. 19 of the Commonwealth Conciliation and Arbitration Act 1904 unless there is in fact such a dispute which has been submitted to the Court for settle- ment in one of the methods stated in that section, and, in the case oi a dispute submitted by plaint, the plaint should be sufficiently definite 38 CONCILIATION AND ARBITRATION. 63 & 64 Vic. to indicate to the Court and to the other parties the subject matter of C. 12. the dispute. Though the Court is not bound to award the particular S.51 (XXXV.) form of relief claimed in the plaint, and though it may, under s. 38, sub-s. (u) deal with all matters incidental and ancillary to the dispute submitted to it, and make such order as it deems expedient for the settlement of the dispute, it has no jurisdiction to make an award as to matters not substantially involved in or connected with the disputes. So, where the Court embodied in its award for the settlement of an industrial dispute properly submitted to it directions making important changes in conditions of employment, as to which no claim had been made in the original plaint, as to which there had not been in fact any dispute between the parties, which were altogether unconnected with the matter submitted to the Court, and which the Court had refused on those grounds to incorporate in the plaint by amendment : Held, that the Court had exceeded its jurisdiction in so far as it purported to deal with those matters, and should be restrained by prohibition quoad hoc, from proceeding to enforce its award. Where the vaUdity of an award is challenged on the ground that the facts necessary to give jurisdiction did not exist, the High Court is not bound by any findings of the inferior Court as to those facts, but may examine the evidence independently in order to see whether there was or was not jurisdiction. The cessation of work in an industry owing to the exis- tence of an unsettled industrial dispute, does not in itself amount to a termination of the relationship of employer and employe within the meaning of the Act. That depends upon whether the conduct of the parties evinced an intention that the relationship should come to an end. Semble, per Griffith, C.J., and O'Connor, J. The rule that the superior Court may in its discretion refuse a writ of prohibition to restrain an inferior Court which has exceeded its jurisdiction, if the defect of jurisdiction does not appear on the face of the proceedings, and the party seeking the writ has allowed judgment to pass without objection, does not ordinarily apply to an application for a prohibition against the enforcement of an award of the Conciliation and Arbitration Court in an industrial dispute, because such an award may afiect the rights of persons who were not parties, and who, therefore, had no opportunity of objecting to the jurisdiction. Award of the Common- wealth Court of Conciliation and Arbitration, 12th March, 1909 (Higgins, J., President), held to be in excess of jurisdiction, and rule made abso- lute for a writ of prohibition quoad the excess. E. v. Commonwealth Court of Conciliation and Arbitration ; Ex pmie Broken Hill Proprietary Co. Ltd., F.C, 8 C.L.R. 419. Industrial Conciliation and Arbitration (Commonwealtli)— Juris- diction of Commonwealth Court of Conciliation and Arbitration- Industrial dispute extending beyond ttie limits of one State — ^Demand by employes — ^Necessity for preconcert among employers — ^Demand for higlier wages in one State than in others — ^Industry subdividied into branches — Interference with State law — Award of State Arbitra- tion Court— Industrial Agreement under State Law — ^Determination of Wages Board — Adding parties — Commonwealth of Australia Constitu- COMMONWEALTH OF AUSTRALIA CONSTITUTION. 39 tion Act (63 and 64 Vict. c. 12), s. V.— The Constitution, ss. 51 (xxxv.), 99 63 & 64 Vic. 109 — Commonwealth Conciliation and Arbitration Act 1904 (No. 13 of c. 12. 1904), ss. 4, 19, 30, 38 (p.). — ^Assuming the existence of all other circum- S.51 (xxxv.) stances which constitute an industrial dispute extending beyond the limits of one State, including a demand by combined and organized employes on their employers, want of preconcert on the part of the employers in refusing the demand does not either under s. 51 (xxxv.) of the Constitution or under the Commonwealth Conciliation and Arbi- tration Act 1904 deprive the Commonwealth Court of Conciliation and Ar- bitration of jurisdiction to make an award on a plaint brought before the Court by the organization of employes. So held by O'Connor, Isaacs and Higgins, JJ. By Griffith, C.J. — The absence of such preconcert may be evidence to negative the existence of a dispute within the mean- ing of s. 51 (xxxv.) of the Constitution, but, on the assumption men- tioned, the mere \s ant of such preconcert on the part of the employers does not, under the Commonwealth Conciliation and Arbitration Act 1904, deprive the Commonwealth Court of such jurisdiction. Where part of the demand made by an organization of employes is that the wages in one State shall be higher than those in the other States the Commonwealth Court of Conciliation and Arbitration may, never- theless, make an enforceable award in respect of the employes in that State. If an industry has several difierent and well recognized branches, the Commonwealth Court of Conciliation and Arbitration may make an award enforceable in all the States to which the particular dispute extends as to wages and conditions of labour in that industry, not- withstanding that, at the time the dispute is brought before the Court, (1) In one or more States no member of the organization of employes which is bringing the plaint is actually employed in one of the branches of the industry, or (2) In one of the States one of the branches of the industry is not carried on, or (3) One of the employers, who carries on all the branches in one State, and only one branch in another State, is not in the former State employing any members of the organization in one of the branches, or (4) An employer carrying on all the branches in one State is not in one branch employing any members of the or- ganization. So held by Isaacs and Higgins, JJ. So held, also, by Griffith, C.J., with the provisoes that the branches of the industry are such that a question which affects one branch affcets the others in every State concerned, so that the industrial dispute is really a single dispute, and, as to (3), that the businesses carried on by the employer in both States constitute in fact one business. The Common- wealth Court of Conciliation and Arbitration has power to make an enforceable award inconsistent with — (1) an award of a State Arbitra- tion Court, (2) an industrial agreement made and registered pursuant to a State Statute, or (3) an industrial agreement enforceable under State law ; but (Isaacs and Higgins, JJ., dissenting) it has no power to make an enforceable award which is inconsistent with a determination of a Wages Board empowered by a State Statute to fix a minimum rate of wages. A company which, after the filing of a plaint, purchased the business of one of the respondents to the plaint, held to be rightly added as a party under s. 38 (p) of the Commonwealth Conciliation and 40 CONCILIATION AND ARBITRATION. 63 & 64 Vic. Arbitration Act 1904. Requisites of an industrial dispute extendiag C. 12. beyond the limits of one State considered. Federated Saw Mills, S.51 (XXXV.) &c., Employees of Australasia v. James Moore & Son Peopeietary Ltd., F.C, 8 C.L.E. 465. Industrial dispute^ — Commonwealth Court of Conciliation and Arbitration — Jurisdiction — Award inconsistent with State law — Deter- mination of Wages Board — Test of inconsistency — Minimum Wage- Commonwealth of Australia Constitution Act (63 and 64 Vict. c. 12), cl. V. ; The Constitution, s. 51 (xxxv.) — ^Factories and Shops Act 1909, (No. 2) (Vict.) (No. 2241), s. 39.— The Commonwealth Court of Concilia- tion and Arbitration has no jurisdiction under s. 51 (xxxv.) of the Con- stitution to make an award inconsistent with a State law. The deter- mination of a Wages Board empowered by a State Statute to fix a minimum rate of wages may be such a law. Whether it is or not depends upon the terms of the Statute under which it is made. So held by Griffith, C.J., and Barton and O'Connor, J J. {Isaacs and Higgins, JJ. dissenting). Opinion to that effect in Federated Saw Mill, dtc, Employes of Australasia v. James Moore & Sons Proprietary Ltd. (8 C.L.R. 465), adopted. An award of the Commonwealth Court of Conciliation and Arbitration is not inconsistent With a State law if compliance with the award is consistent with obedience to the State law. Held, therefore, that an award fixing a minimum rate of wages higher than that fixed by a determination of a State Wages Board is not for thatreasonaloneinconsistentwiththatdetermination. Held,aho, that an award is not necessarily inconsistent with such a determination merely because it imposes conditions under which rates of wages lower than the minimum rate fixed by it may be permitted to be paid different from the conditions imposed by the determination of the State Wages Board on a similar position, e.g., in the cases of aged, slow and infirm workers, boys and apprentices. Sec. 39 of the Factories and Shops Act 1909 (No. 2) (Vict.), has not the effect of excluding the jurisdiction of the Commonwealth Court of Conciliation and Arbitration in oases where a Victorian Wages Board has made a determination. Australian Boot Trade Employes Federation ©.Whybrow & Co., 10 C.L.R. 266. Industrial Dispute — Legislative powers — Commonwealth Concilia- tion and Arbitration— Validity of legislation — "Arbitration," meaning ol— Jurisdiction of High Court— Severabiltiy— Prohibition— Award bad in part — Industrial dispute extending beyond the limits of any one State- Evidence— Severability of claim— Validity of award— Award in respect of matter not claimed in plaint — ^Wages of apprentices — ^Delegation of powers by Commonwealth Court of Conciliation and Arbitration to board of reference — ^The Constitution (63 and 64 Vict. c. 12), ss. 51 (xxxv.), 71, 73, 75 — Commonwealth Conciliation and Arbitration Act 1904 (No. 13 of 1904), ss. 30, 31, 38 (f), (g)— Judiciary Act 1903 (No. 6 of 1903), ss. 31, 33. — The Commonwealth Concihation and Arbitration Act is not ultra vires the Constitution, either on the grounds that under that Act the reference to the Court of Industrial Disputes is compulsory, or on the ground that the tribunal for the determination of such disputes COMMONWEALTH OF AUSTRALIA CONSTITUTION. 41 is not chosen by the disputants. Under the Constitution the only 63 & 64 ViC. arbitral power which can be conferred upon the Commonwealth Court C. 12. of Conciliation and Arbitration is a power of judicial determination S.51 (XXXV.) between the parties to a dispute. Per Griffith, C.J., Barton and O'Oowwor, JJ. — The test to be applied in determining whether the invalid part of an Act is severable is whether the Act with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by the portions which remain from the law as it would be with the omitted portions forming part of it. Per Isaacs, J. — The test of invalidity is this. If good and bad provisions are included in the same word or expression the whole must fail. Where they are contained in separate words or expressions, then, if the good and the bad parts are so mutually connected with and dependent upon each other as to lead the Court, upon applying the language to the subject matter, to believe that Parhament intended them as a whole, and did not pass the good parts as independent provisions, all the provisions so connected and dependent must fall together. Held, therefore, that the provisions in the Commonwealth Conciliation and Arbitration Act dealing with the regulation of industries generally, if invahd, are severable. Per Griffith, C.J., Barton and O'Connor, JJ. — The High Court has jurisdiction to issue prohibition to the Commonwealth Court of ConciUation and Arbitration either under s. 75 of the Constitution, the President of the latter Court being an officer within the meaning of that section, or under s. 33 of the Judiciary Act 1903, and whether an appeal Ues or does not lie to the High Court. Per Isaacs, J. — Prohibi- tion to revise or correct the proceedings instituted in another Court is appellate, not original jurisdiction, and is therefore not within s. 75 of the Constitution. But the High Court has jurisdiction to issue prohibition to the Commonwealth Court of Conciliation and Arbitration because s.' 31 of the Commonwealth Conciliation and Arbitration Act has not taken away that part of the appellate power granted by the Constitution. A rule nisi for prohibition having been granted to set aside an award of the Commonwealth Court of Conciliation and Arbitration, the invalid portion of the award being severable, the rule nisi was enlarged so as to enable the award to be amended. A letter signed by the Secretary of the Australian Boot Trade Employes Federa- tion was sent to employers in four States, alleging that the persons employed by the respective employers were dissatisfied with their conditions of employment, and demanding that the conditions men- tioned in a log annexed to the letter should be granted by the employer. These conditions had been previously adopted by the branches of the Federation in all the four States, and constituted a complete code for the regulation of the industry. Various dates were given for replying to the demand. The conditions demanded not having been conceded within the time limited, the applicant union filed a plaint, alleging the pendency of a dispute extending beyond the limits of any one State as to various matters, and claiming in the terms of the log. The President found that only two of the twenty -three claims were really in dispute between the parties. Held, that the claim was severable, and that the Court of Conciliation and Arbitration had jurisdiction to deal with 42 CONCILIATION AND AKBITRATION. 63 & 64 Vic. matters found to be in dispute. Upon motion for a prohibition the C. 12. High Court is not bound by the finding of the President that there was S.51 (XXXV.) a dispute. A demand and refusal is not of itself necessarily sufficient to establish the existence of a dispute. Per Isaacs, J. — -A dispute raised in a formal and complete way is to be taken prima facie as genuine and real. What constitutes evidence of an industrial dispute extending beyond the hmits of any one State considered. The claimants demanded a rate of wages for apprentices fixed upon the basis of experience. Held, that the President had no jurisdiction to award a higher rate than was asked for. Held, also, by Griffith, C.J., Barton and O'Connm', JJ., that the payment of apprentices could not be fixed upon an age basis. Per Isaacs, J. — -In fixing the wage for apprentices the Presi(fent and regarded both the age and experience of the apprentice, and the award in this respect was valid. The award further provided that " persons bound under a deed of apprenticeship shall, if the subject of the ap- prenticeship is approved by the board of reference, be deemed to have been duly apprenticed." Held, that the President could not delegate to the board of reference the question of the vaUdity of the deeds of apprenticeship. Per Isaacs, J. — The President could not delegate to the board the final decision as to the classification of the trade, which was one of the issues to be tried by the Court. E. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Whybrow & Co., 11 C.L.E. 1. Legislative powers — Powers of the Commonwealtli — " Conciliation and arbitration for tlie prevention and settlement of industrial disputes " — Common rule — ^The Constitution (63 and 64 Vict. c. 12), s. 51 (xxxv.), (xxxix.) — Commonwealth Conciliation and Arbitration Act 1904-1910 (No. 13 of 1904, No. 7 of 1910), ss. 19, 38 (f), (g).— The provisions of the Commonwealth Conciliation and Arbitration Act 1904-1910, which purport to authorize the Commonwealth Court of Conciliation and Arbitration to declare a common rule in any particular industry, and direct that the common rule so declared shall be binding upon the persons engaged in that industry, are uUra vires the Parliament of the Commonwealth and invalid. Australian Boot Trade Employes' Federation v. Whybrow & Co., 11 C.L.E. 311. XXXVI. Matters in respect of which this Constitution makes provision until the Parliament otherwise provides : See Audit (1901-1912). Commonwealth PubUc Service 1902-1911 (1902 No. 5, 1909 No. 25, 1911 No. 26). Commonwealth Franchise (1902 No. 8). Commonwealth Electoral 1902-1911 (1902 No. 19, ss. 12, 23, 94-99, 192-206) ; 1905 No. 26, 1906 No. 18, 1909 No. 19, 1911 No. 17), as to right of State electors. Con- stitution, ss. 41, 117; elections for Senate, s. 8; House of Eepresentatives, s. 30 ; alien races, s. 25. Parliamentary Allowances (1907 No. 5), repealing 1902 No. 20. Senate Elections (1903 No. 2). COMMONWEALTH OF AUSTRALIA CONSTITUTION. 43 See Representation (1905 No. 11). 63&64ViC Surplus Revenue (1908 No. 15) (1909 No. 18), and (1910 C. 12. No. 8). S. 51 XXXVII. Matters referred to the Parliament of the Common- wealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law: xxxviii. The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia : XXXIX. 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. See Appropriation and Supply Acts. Acts Interpretation, 1901 No. 2. Punishment of Offences (1901 No. 14), expired ; see Judiciary (1903-1912). Commonwealth Public Service, 1902-1911 (1902 No. 5, 1909 No. 25, 1911 No. 26). Royal Commissions, 1902-1912 (1902 No. 12, 1912 No. 4). Judiciary, 1903-1912 (1903 No. 6, 1906 No. 5, 1907 No. 8, 1910 No. 34, 1912 No. 31). High Court Procedure (1903 No. 7). High Court Procedure Amendment (1903 No, 13). Rules Publication (1903 No. 18). Acts Interpretation (1904 No. 1). Jury Exemption (1905 No. 2). Evidence (1905 No. 4). Secret Commissions (1905 No. 10). Amendments Incorporation (1905 No. 13). Governor-General's Residences (1906 No. 2). Kalgoorlie to Port Augusta Railway Survey (1907 No. 4). Commonwealth Salaries (1907 No. 7). Excise Procedure (1908 No. 1). Parliamentary Papers (1908 No. 16). Seat of Government (1908 No. 24), s. 5. High Commissioner (1909 No. 22). Statutory Declarations (1911 No. 3). Arbitration (Public Service) (1911 No. 11). (xxxvi.) 44 COM>ION\YEALTH POWERS. 63 & 64 Vic. See Australian Boot Trade Employees' Federation v. Whybrow & Co., C. 12. note to s. 51 (xxxv.) ; S. 51 Jumbunna Coal Mine v. Victorian Coal Miners' Assoication, (xxxix.) note to s. 51 (xxxv.) ; R. V. Commonwealth Court of ConciUaiion & Arbitration ; Ex parte Broken Hill Proprietary Ltd., note to s. 51 (xxxv.). Income tax — ^Taxation of income of Commonwealth officer— Inter- ference with free exercise of Commonwealth power — Implied prohibition in Constitution — ^Weight to be attached to American decisions^ — Question as to limits inter se of constitutional powers of Commonwealth and State — Conflicting decisions of Privy Council and High Court — Powers of Commonwealth Parliament— Judiciary Act 1903 (No. 6 of 1903), s. 38— Ultra vires — ^Appeal to Privy Council — Application for certificate — The Constitution (63 and 64 Vict. c. 12), s. 51, sub-s. (xxxix.), ss. 73-77.— In an action in a New South. Wales District Court to recover income tax under the Land and Income Tax Act of that State from a federal officer in respect of his salary as such officer, the defendant claimed to be exempt from liability on the ground that the taxation of his income was an inter- ference with the free exercise of the powers of the Commonwealth with- in the meaning of the rule laid down in D'Emden v. Pedder (1 C.L.E. 91), and therefore impliedly prohibited by the Constitution. The Judge following the decision of the Privy Council in Wdb v. Outtrim ([1907] A.C. 81 ; 4 C.L.R. 356), gave judgment for the plaintiff. The defendant appealed direct to the High Court, adopting the procedure prescribed by the State law for appeals to the Supreme Court. Held, that the question raised for the defence was a question as to the limits inter se of the constitutional powers of the Commonwealth and a State within the meaning of s. 74 of the Constitution, that the District Court was therefore exercising federal jurisdiction under s. 39 of the Judiciary Act 1903, and the appeal was competent by virtue of sub-s. (2) (a) of that section, as well as by s. 73 of the Constitution. Held, further {per Griffith, C.J., Barton and O'Connor, JJ.), that the High Court was, by the Constitution, the ultimate arbiter upon all such questions, unless it was of opinion that the question at issue in any particular case was one upon which it should submit itself to the guidance of the Privy Council, and was therefore not bound to follow the decision ia Webb v. Outtrim, ([1907] A.C. 81 ; 4 C.L.R. 356), but should foUo^v its own considered decision in Deakin v. Webb (1 C.L.R. 585), in which it had refused to grant a certificate under s. 74, unless Tipon a reconsideration of the question for whatever reason it should come to a different con- clusion ; and that, assuming the fact that the Privy Council had given a decision in direct conflict with the High Court on the same point to be a sufficient reason for a reconsideration of the whole matter by the High Court, there was nothing in the reasons of the Judicial Committee to throw any new Ught on the question involved, either with regard to the necessity for the implication of the rule of implied prohibition laid down in McCulloch v. Maryland (54 Wheat. 316) and adopted in D'Emden v. Pedder (1 C.L.R. 91), or as to the applicability of the rule to the particular question. The rule in D'Emden v. Pedder (1 C.L.R. COMMONWEALTH OF AUSTRALIA CONSTITUTION. 45 91) reaffirmed. In construing the Constitution regard must be had63&64Vic. to tie fact that it is an instrument of government calling into existence C. 12. a new State with sovereign powers, subject only to the British Crown. S. 51. The duty of the High Court in regard to questions under s. 74 is to be (xxxix). determined upon consideration of the whole purview and history of the Constitution. Per Isaacs, J. — Apart from any consideration of its his- tory, the words of s. 74 are clear and strong enough to lead to the conclusion that on questions coming within the section the decision of the High Court was final, and, therefore, the Court had a right to de- cline to follow the decision of the Privy Council upon any such question, but the respect and weight due to the judgment of the Privy Council made it the duty of the High Court under the circumstances to recon- sider the question decided in Deakin v. Webb (1 C.L.R. 585). Further consideration in the light of the decision in Webh v. Outtrim ([1907] A.C. 81 ; 4 C.L.R. 356), leaves the authority of D'Emden v. Pedder (1 C.L.R. 585), unimpaired, but the Land and Income Tax Act of New South Wales, considered apart from authority, cannot be regarded,^ as an infringement of the rule for non-interference laid down in the latter case. Per Higgins, 3. — The only diminution of the prerogative right of the King in Council to entertain appeals from all Courts in the colonies and dependencies is that, in cases involving such questions as are referred to in s. 74, when the High Court has given a decision, there is to be no appeal from the High Court except by leave of the High Court ; and there is nothing in the Constitution to make the High Court the final authority on any kind of law. The Act should not be extended by implication in the direction of infringing the prerogative rights of the Crown. The King in Council being therefore still the appellate Court from the High Court, and the High Court a Court from which appeal can be brought to the King in Council, it is the duty of the High Court to accept the decision of the King in Council as the final statement of the law. The Land and Income Tax Act of New South Wales is not an interference with federal instrumentalities. Per totam curiam. — Even if s. 39 sub-s. (2) (a) of the Judiciary Act 1903 purports to take away the prerogative right of appeal to the Privy Council, and the sec- tion is to that extent uUra vires and inoperative, its failure in that respect does not afiect the validity of the grant of federal jurisdiction to State Courts contained in the rest of the section and the consequent right of appeal to the High Court. Sed quaere, whether sub-s. (2) (a) should be construed as affecting the prerogative. Decision of Murray, D.C.J., reversed by a majority {Isaacs, J., and Higgins, J., dissenting). Wdib V. Outtrim ([19071 A.C. 81 ; 4 C.L.R. 356), not followed. Certificate for leave to appeal to the Privy Council refused. The fact that there are conflicting judgments of the High Court and the Privy Council on the same question is not a sufficient reason for granting a certificate. Commissioners of Taxation (N.S.W.) v. Baxter, F.C, 4 C.L.R. 1087; special leave to appeal refused by Privy Council, 1908 A.C. 214 ; 5 C.L.R. 398. Postponement of proceedings by Supreme Court— Duty of Supreme Court — Relation of High Court to Supreme Court— Judiciary Act 1903 (No. 6 of 1903), s. 37 — Commonwealth of Australia Constitution Act 46 COMMONWEALTH POWERS. 63 & 64 Vic. 1900 (63 and 64 Vict. c. 12), s. V.— The Constitution, ss. 51 (xxxix), 73.— C. 12. Sec. 37 of tke Judiciary Act 1903, in so far as it authorizes the High SS. 51 Court in the exercise of its appellate jurisdiction to remit a cause to the (xxxix.), 52. Supreme Court of a State for the execution of the judgment of the High Court, and imposes upon the Supreme Court the duty of executing the judgment of the High Court in the same manner as if that judgment were the judgment of the Supreme Court, is a valid exercise by the Parha- ment of the power conferred ^y s. 51 (xxxix.) of the Constitution. On an appeal from the Supreme Court of a State to the High Court, the High Court, in allowing the appeal, ordered the judgment appealed from to be discharged, and that in lieu thereof there should be substituted a declaration that the plaintifis were entitled to recover a sum to be thereafter ascertained, and further ordered that the cause " be remitted to the Supreme Court to do therein what is right in pursuance of the judgment." Leave to appeal to the Privy Council from the judgment of the High Court having been obtained by the defendants, and a stay of proceedings having been granted by the High Court and subsequently removed, an application to the Supreme Court to proceed with the inquiry directed by the High Court was made by the plaintiff. Held, that an order made by the Supreme Court, that the matter should be deferred until the decision of the Privy Council should be made known, was a stay of proceedings, and therefore was an order which the Supreme Court had no authority to make. Peacock v. D. M. Osborne ds Go. (4 C.L.E. 1564), applied. The High Court may directly order an officer of the Supreme Court of a State to obey a judgment of the High Court. Judgment of the Supreme Court reversed. Bayne v. Blake, P.O., 5 C.L.E. 497. Exclusive 52. The Parliament shall, subject to this Constitution, powers ot ine ' ■' Parliament. T^g.^^ 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 acquired hy the Commonwealth for public purposes : See Property for Public Purposes Acquisition (1901 No. 13), &c., repealed by Lands Acquisition (1906 No. 13). Seat of Government (1904 No. 7), repealed by (1908 No. 24). Lands Acquisition (1906 No. 13, 1912 No. 39). Seat of Government (1908 No. 24). Seat of Government Acceptance (1909 No. 23). Seat of Government Administration (1910 No. 2-5). II. blatters relating to any department of the public service the control of which is by this Constitution trans- ferred to the Executive (Government of the Common- wealth : COMMONWEALTH OF AUSTRALIA CONSTITUTION. 47 See Customs, 1901-1910 (1910 No. 6, 1910 No. 36). 63&64ViC. Beer Excise, 1901-1912 (1901 No. 7, 1912 No. 23). C. 12. Distillation (1901 No. 8). S. 52 (ii.) Excise (1901 No. 9). Post and Telegraph, 1901-1912 (1901 No. 12, 1910 No. 28, 1912 No. 30). Commonwealtli Public Service, 1902-1911 ( 1902 No. 5, ss. 60-62.) Post and Telegraph Eates, 1902-1911 (1902 No. 13, 1906 No. 10, 1911 No. 8). Defence, 1903-1912 (1903 No. 20, 1904 No. 12, 1909 No. 15, 1910 No. 37, 1911 No. 15, 1912 No. 5). Wireless Telegraphy (1905 No. 8). Spirits (1906 No. 21). NavalDefence, 1910-1912 (1910No. 30, 1911 No. 16, 1912No. 21). Purchase Telephone Lines Acquisition (1911 No. 9). Pacific Cable (1911 No. 25). Commonwealth Workmen's Compensation (1912 No. 29). See Attorney-General for N.S.W. v. Collector of Customs for N.S.W., note to s. 114. Stamp duty on receipts — Extent of Commonwealth authority in matters placed by the Constitution within its jurisdiction — Power of States to control Commonwealth agencies — Construction of State Act which may have the effect of fettering such agencies — ^The Constitution (63 and 64 Vict. c. 12), ss. 52 (ii.), 107-109, 114— Applicability of American decisions in construction of Commonwealth Constitution — Common- wealth Audit Act (No. 4 of 1901) — Stamp Duty Amendment Act 1902 (Tas.) (2 Edw. Vn. No. 30)— Effect of Appropriation Act.— The Com- monwealth and the States are with respect to the matters which under the Constitution are within the ambit of their respective legislative or executive authority, sovereign States, subject only to the restriction imposed by the Imperial connection and the provisions of the Constitu- tion, either expressed or implied. Where, therefore, the Constitution makes a grant of legislative or executive power to the Commonwealth, the Commonwealth is entitled to exercise that power in absolute freedom and without any interference or control whatever except that pre- scribed by the Constitution itself. If a State attempts to give its legislative or executive authority an operation which if valid would interfere to any, the smallest, extent, with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is invalid and inopera- tive. In interpreting the Commonwealth Constitution, it is reasonable to infer that, where the framers of that instrument inserted provisions indistinguishable in substance, though varied in form, from the pro- visions of other legislative enactments which have received judicial interpretation, they intended that such provisions should receive the like interpretation. General words in a State Act should, if possible, be so construed that the application of the State Act will not infringe the Commonwealth Constitution. The Stamp Duties Amendment Act 1902 (Tas.), which prescribes inter alia, that from 1st January, 1903, there shall be levied in respect of . . . every receipt where 48 EXCLU.SIVE POWERS. 63 & 64 Vic. tke sum received amounts to £5 and under £50 ... a stamp duty C. 12. of 2d., must be construed so as not to apply to a receipt given by a S. 52 (ii.) federal officer in Tasmania for his salary, such receipt being required to be given by the Commonwealth law and practice regulating the department to which the officer belongs. Such a receipt is not the property of the Commonwealth, in such a sense as to bring it within the words of s. 114 of the Commonwealth Constitution, which prohibits the taxation of Commonwealth property by the States. Although the stamp tax levied by the Stamp Duties Amendment Act 1902 (Tas.), if imposed on receipts given by a federal officer for salary, would in substance amount to a diminution of the officer's salary, the Act by which it is levied is not on that account inconsistent with the Federal Appropriation Act in which such salary is voted. The effect of an Appropriation Act is not to fix salaries, but to authorize the payment for salaries and other purposes of sums not exceeding those specified in the Act. D'Emden v. Pedder, F.C, 1 C.L.R. 91 ; disapproved in Privy CouncU, see Webb v. Outtrim (P.C. 4 C.L.R. 356) ; latter case not followed in Commissioners of Taxation v. Baxter (4 C.L.R. 1087) ; and special leave to appeal from last case refused by Privy Council : 1908 A.C. 214 ; 5 C.L.R. 398. Income Tax — Limits inter se of constitutional powers of Common- wealtli and State — Control of Commonwealth Agency— Taxation of income of Commonwealtli officer — Income taxed after receipt— The Constitution, ss. 52 (ii.), 106-109— Income Tax Act 1895 (Vict.) (No. 1374), ss. 2, 7, 9, 14 ; Income Tax Act 1901 (Vict.) (No. 1758).— The prin- ciple enunciated in D'Emden v. Pedder (1 C.L.R. 91, at p. Ill), that " when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative," re-affirmed. An Income Tax Act of a State, in so far as it attempts to tax the salaries of officers of the Com- monwealth is within the above principle. Such an Act of a State is not taken out of the above principle by reason of the fact that the income tax is assessed on salary received during a preceding year. Held, there- fore, that the salaries of a Minister of the Crown for the Commonwealth and of a member of the Commonwealth Parliament, so far as they are earned in Victoria, are not Uable to assessment under the Income Tax Acts of Victoria. Decision of the Full Court : In re Income Tax Ads (29 V.L.R. 748 ; 25 A.L.T. 245), reversed. Wollaston's Case (28 V.L.R. 357), overruled. Bank of Toronto v. Lambe (12 App. Cas. 575), dis- tinguished. The liability of a Commonwealth officer to an income tax imposed by a State Act in respect to his salary as such officer, is a ques- tion as to the limits inter se of the Constitutional powers of the Common- wealth and those of a State within the meaning of s. 74 of the Constitu- tion, and, therefore, the decision of the High Court as to such liability is final and conclusive unless the Court certifies that the question is one which ought to be determined by His Majesty in Council. Deakin v. Webb ; Lyne v. Webb, F.C, 1 C.L.R. 585 ; disapproved in Privy Council, P.C. 4 C.L.R. 356 (see D'Emden v. Pedder, supra). COMMONWEALTH OK AUSTRALIA CONSTITUTION. 49 Income tax— Interference with legislative or executive power of 63 & 64 Vic. Commonwealth— Implied prohibition— Salary of Commonwealth officer c. 12 —The Constitution, ss. 52 (ii.), 73, 74, 77, 106-109— Income Tax Act 1895 s. 52 (ii.) (Vict.) (No. 1374), ss. 2, 7, 9, 14 ; Income Tax Act 1901 (Vict.) (No. 1758)— Appeal from Supreme Court to Privy Council— Power of Commonwealth Parliament to take away right of appeal-Judiciary Act 1903, ss. 30, 38, 39. — ^An interference by the legislature of a State with the free exercise of the legislative power or executive of the Commonwealth is not impliedly forbidden by the Constitution. Held, therefore, reversing the decision of the Supreme Court of Victoria, that an officer of the Commonwealth resident in Victoria, where he earns and receives his salary as such officer, is liable to assessment under the Income Tax Acts of Victoria. UEmden v. Pedder (1 C.L.R. 91) ; and Deahin v. Webb (1 C.L.R. 585), disapproved. The Commonwealth ParUament has no power to take away, either by express enactment or by implication, the right of appeal to the Privy Council given by the Order in Council of 9th June, 1860. Held, therefore, that the Supreme Court of Victoria had power under that Order in Council to grant leave to appeal to the Privy Council from a decision of the Full Court that the salary of an officer of the Commonwealth, earned and received in Victoria, where he was resident, was liable to assessment under the Income Tax Acts of Victoria, notwithstanding the provisions of ss. 30, 38, and 39 of the Judiciary Act, 1903. Webb v. Outtrim, P.O., 4 C.L.R. 356 ; not followed. Commissioners of Taxation v. Baxter (4 C.L.R. 1087) ; special leave to appeal refused by Privy Council, 1908 A.C. 214 ; 5 C.L.R. 398. Rule as to legislation binding Crown— How far State Governments subject to Commonwealth legislation — Goods imported by State Govern- ment — Removal from Customs control — Customs Act 1901 (No. 6 of 1901), ss. 30, 33, 236— The Constitution (63 and 64 Viet. e. 12), ss.52 (ii.), 86, 90. — The rule that the Crown is not bound by a Statute except by express words or necessary impUcation appUes only to those represen- tatives of the Crown who have executive authority in the place where the statute applies, and as to matters to which that executive authority extends. The Constitution binds the Crown as represented by the various States, and takes no account of the States and State Govern- ments in relation to Commonwealth legislation on matters within the exclusive control of the Commonwealth Government, and therefore, in the construction of Commonwealth Statutes dealing with such matters, the rule applies to the Sovereign as head of that Government, but not to the Sovereign as head of the State Governments. The Cus- toms Act 1901, being a vaUd exercise by the Commonwealth of the exclusive power to impose, collect and control duties of Customs and Excise conferred by ss. 52 (ii.), 86 and 90 of the Constitution, applies to goods imported by the Government of a State as well as to those imported by private persons ; and, therefore, goods imported by a State, whether dutiable or not, are by s. 30 of the Act subject to the control of the Customs, and the authority of the State Executive is no justification for their removal from that control contrary to the pro- visions of the Act. A quantity of wire netting, which had been pur- CONSTITUTION ACT D 50 EXCLUSIVE POWERS. 63 & 64 Vic. chased in England and imported into tlie Commonwealth by the C. 12. Government of New South Wales, was landed at the port of Sydney. SS. 52-55. Without any entry having been made or passed, and without the authority of the Customs officers, the defendant, acting under the authority of the Executive Government of the State, removed the goods from the place where they were stored. Hdd, that the defendant had committed a breach of ss. 33 and 236 of the Customs Act. Judg- ment entered for the plaintiffs for a penalty. R. v. Sutton, E.G., 5 C.L.R. 789. III. Other matters declared by this Constitution to be within the exclusive power of the Parliament. See Sydney Corporation v. Oommonwealth, note to s. 114. Powers ol the Houses in respect of legislation. 53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But 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 fines or other pecuniary penalties, or for the demand or payment or appro- priation of fees for licenses, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys 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 Kepresentatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Eepresenta- tives may if it thinks tit make any of such omissions or amend- ments, 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. Appropriation BUls. Tax Bills. 54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. 55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. COMMONWEALTH OF AUSTRALIA CONSTITUTION. 51 Laws imposing taxation, except laws imposing duties of 63 & 64 Vie. customs or of excise, shall deal with one subject of taxation ^- ^2. only; but 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. See The King v. Barger ; Commonwealth v. McKay, note to s. 51 (ii.). Customs Duties — ^Duties collected under proposed tariff — Proposed tariff different from tariff enacted— Right to recover money paid for duty— Voluntary payment — "Dispute " as to duty— Value of goods for purpose of duty — Outside packages containing goods dutiable ad valorem —Customs Act 1901 (No. 6 of 1901), ss. 154, 157, 226— Customs Tariff 1902 (No. 14. of 1902), s. 6, Schedule A— Customs Tariff 1908 (No. 7 of 1908), ss. 3, 4, 5, 7, Schedule A— The Constitution (63 and 64 Vict. c,12), C. 55. — The words " duties of Customs " in s. 7 of the Customs Tarifi 1908 include moneys demanded by the Collector of Customs and paid in respect of imported goods under such circumstances that, if the tarifE proposed in ParSament on 8th August 1907 or any proposed amendment thereof had, at the time of the demand and paym.ent, been a lawfully imposed tarifE, the moneys would have been properly col- lected as Customs duties. So held by O'Connor, Isaacs and Higgins, JJ. (Griffith, C.J., dissenting). Cowan v. Outtrim, note to s. 52 (ii.). Certificate of High Court — ^Application for certificate — "Special reasons " — The Constitution, s. 74.— The principles applicable to the granting by the Privy Council of leave to appeal from the High Court, or from the Supreme Court of a State, are not appHcable to the granting of a certificate under a. 74 of the Constitution. No general rule can be laid down as to what are " special reasons " for granting such a certificate. The following reasons held not sufficient for granting a certificate : The desire of the governments of all or some of the States that an appeal to the Privy Council should be allowed ; that the de- cision affects a large number of persons in many of the States and the revenues of those States ; that the decision reverses a decision of the Supreme Court of a State. Deakin v. Webb ; Lyne v. Webb, F.C, 1 C.L.R. 585. Certificate of High Court — Decision as to limits inter se of consti- tutional powers of Commonwealth and State — "Special reasons"— The Constitution (63 and 64 Vict. C. 12), s. 74. — The fact that a decision of the Privy Council, on a question of law as to the limits inter se of the constitutional powers of the Commonwealth and the States is contrary to a previous decision of the High Court as to which a certificate under s. 74 of the Constitution has been asked and refused, held not to be of itself a sufficient special reason for granting a certificate as to another decision of the High Court following its previous decision. The incon- venience caused by the existence of those contrary decisions held not to 64 APl'EAL TO QUEEK IX COUNCIL. 63 & 64 Vic. be a sufficient reason. Per Griffith C.J., O'Connor, J., and Isaacs J. — C. 12. That inconvenience can be removed by the Commonwealth Parliament S. 74. exercising its powers under s. 77 (ii.) of the Constitution. Per Griffith, C.J. — ^That inconvenience can also be removed by the Commonwealth Parliament making its grants to its servants subject to the right of the States to tax them. Per Higgins, J. — Quaere, whether, if a State in- come tax on salaries of federal servants is invalid under the Constitution, the Commonwealth ParUament can validate such a tax. Flint v. Webb, F.C, 4 C.L.R. 1178 ; special leave to appeal refused by Privy Council, 1908 A.C. 214 ; 5 C.L.R. 398. APPEALS TO PRIVY COUNCIL. The following matters have been taken on from the High Court to the Privy Council : — Attorney General (N.S.W.) v. Collector of Customs (N.S.W.) (5 C.L.R. 818) ; special leave to appeal refused by Privy Council (1909 A.C. 45). Baxter v. Commissioners of Taxation (N.S.W.) (4 C.L.R. 1087) ; special leave to appeal refused by Privy Council (1908 A.C. 214 ; 5 C.L.R. 398). Blake v. Bayne (4 C.L.R. 1), reversed 1908 A.C. 371 ; 6 C.L.R. 179. Brisbane City Council v. A.-G. for Queensland (5 C.L.R. 695, varied ♦ P.C, 8 C.L.R. 767). Colonial Bank of Australasia Ltd. v. Marshall (1 C.L.R. 632 ; affirmed 1906 A.C. 559 ; 4 C.L.R. 196). Deakin v. Wehh (1 C.L.R. 585), disapproved ; see Webb v. Outtrim (P.C, 4 C.L.R. 356). D'Emden v. Pedder (1 C.L.R. 91), disapproved ; see Webb v. Outtrim (P.C, 4 C.L.R. 356) ; rule in, re-affiimed, A.-G. for N.S.W. V. Collector of Customs for N.S.W. (4 C.L.R. 1087). Dunne v. Byrne (11 C.L.R. 637 ; affirmed 1912 A.C. 407). Flint V. WSb (4 C.L.R. 1178 ; special leave to appeal refused by Privy Council 1908 A.C 214 ; 5 C.L.R. 398). Golden Horseshoe Estates Co. v. The Croum, reversed (1911 A.C. 480). Lothian v. Rickards (12 C.L.R. 166); reversed 1913 A.C. 263. Macintosh v. Dun (3 C.L.R. 1134 ; reversed 1908 A.C. 390 ; 6 C.L.R. 303). Macnaghten v. Paterson (2 C.L.R. 615 ; affirmed 1907 A.C. 483 ; 6 C.L.R. 257). McLaughlin v. Daily Telegraph Newspaper Co. Ltd. (1 C.L.R. 243 ); petition for special leave to appeal refused by Privy Council (1904 A.C. 776, 1 C.L.R. 479). Melbourne, City of, v. Attorney-General for Victoria (3 C.L.R. 467), affirmed (P.C, 5 C.L.R. 257). Mooney v. Commissioners of Taxation (N.S.W.) (3 C.L.R. 221), reversed (P.C, 4 C.L.R. 1439). National Phonograph Co. of Australasia Ltd.v. Menck (7 C.L.R. 481 ; reversed 1911 A.C. 354 ; 12 C.L.R. 15). Peacock v. D. M.Osborne b ; Lyne v. WM, note to s. 52 (ii.) ; D'Emden v. Pedder, note to s. 52 (ii.) ; Webb V. Outtrim, note to s. 52 (ii.). 108. Every law in force in a colony which has become or saving of "^ state laws. becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until pro- vision is made in that behalf by the Parliament of the Common- wealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the colony had until the colony became a State. See Deakin v. Webb ; Lyne v. Webb, note to s. 52 (ii.) ; D'Emden v. Pedder, note to s. 52 (ii.) ; McKelvey v. Meagher, note to s. 51 (xxix.) ; Sydney Corporation v. Commonwealth, note to s. 114 ; Wd>b V. Outtrim, note to s. 52 (ii.) ; 109. When a law of a State is inconsistent with a law of inconsistency of laws. the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. See Deakin v. Wd>b ; Lyne v. Webb, note to s. 52 (ii.) ; D'Emden v. Pedder, note to s. 52 (ii.) ; Federated Saw Mills, dc, Employees of Australasia v. James Moore & Son Proprietary Ltd., note to s. 51 (xxxv.) ; Wd)b V. Outtrim, note to s. 52 (ii.). 110. The provisions of this Constitution relating to the Provisions ^"^ F6f61*FltlCr t<0 Governor of a State extend and apply to the Governor for the Governor. 84 GOVERNOR OF STATE. 63 & 64 Vic. time being of the State, or other chief executive officer or *• ^2. administrator of the Government of the State. SS. 110-114 states may HI. The Parliament of a State may surrender any part surrender territory. of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth. states may 112. After Uniform duties of customs have been imposed, levy charges '■ ' for inspection a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State ; but the net produce of all charges so levied shall be for the use of the Common- wealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth. Intoxicating 113. AH fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage shall be subject to the laws of the State as if such liquids had been produced in the State. See Fox v. Bobbins, note to s. 92. 114. A State shall not, \ Parliament of the Commonwealth, raise or maintain any naval proper?" of ^^ military force, or impose any tax on property of any kind or stetf ™*'"* belonging to the Commonwealth ; nor shall the Commonwealth impose any tax on property of any kind belonging to a State. See D'Emden v. PeMer, note to s. 52 (ii.) ; Osborne v. Commonwealth, note to s. 55. Municipal rates— Taxation of Commonwealth property by State- Powers of States — ^Express and implied restriction — ^Lands "vested" in the Commonwealth — "Matters within the powers of the Common- wealth "—Sydney Corporation Act (42 Vict. No. 3), s. 103 (Consolidating Act, No. 35 of 1902, s. 110) — Commonwealth of Australia Constitution Act (63 and 64 Vict. e. 12), s. (v.). The Constitution, ss. 51, 52, 85, 108, 114. To levy a municipal rate upon Commonwealth property is to " im- pose a tax" within the meaning of s. 114 of the Constitution. Upon the establishment of the Commonwealth, and subsequently, certain lands and buildings within the boundaries of the City of Sydney, the property of the Government of New South Wales, became vested in states may not 114. A State Shall not, without the consent of the raise forces. ' COMMONWEALTH OF AUSTRALIA COKSTITUTION. 8S , the Commonwealth by virtue of ss. 85 (i.) and 86 of the Constitution. 63&64ViC. Before the establishment of the Commonwealth these lands and build- C. 12. ings, as Crown lands in New South Wales, were liable to be rated and S. 114. were rated by the plaintiff councU under s. 103 of the Sydney Corpora- tion Act of 1879 (s. 110 of the Sydney Corporation (Consolidating) Act of 1902). After the vesting of the lands and buildings in the Common- wealth, the plaintifi council claimed to be entitled to be paid rates thereon by the Commonwealth. Held, that the liability of the lands and buildings to be rated was not continued by s. 108 of the Constitution, and that, therefore, by virtue of s. 144, the Commonwealth was not liable to pay rates in respect of them. Hdd, also, that s. 110 of the Sydney Corporation Act 1902 (N.8.W.) should be construed as not intended to apply to land the property of the Commonwealth. Indi- vidual opinions of members of the Convention expressed in debate cannot be referred to for the purpose of construing the Constitution. Sydney Coeporation v. Commonwealth, F.C, 1 C.L.E. 208. Importation of goods by State Government— Instrumentality of State— Liability to duty— ^Construction — ^Tlie Constitution (63 and 64 Viet. c. 12, ss. 51 (i.), (ii.), 52 (ii.), 86, 90, 114.— The rule laid down in D'Emdm v. Pedder, 1 C.L.R. 91, at p. Ill, and applied to the case of interference by the Commonwealth with State instrumentaUties in the Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employes' Association (4 C.L.R. 488 \ has no application to powers which are conferred upon the Commonwealth in express terms, and which by their nature manifestly involve control of some operation of the State Governments, such as the power to make laws with respect to trade and commerce with other countries, and with respect to taxation. It must be assumed that the legislature intended that so far as is necessary for the effective exercise of these powers, the rights of State Governments should be restricted. The imposition of Customs duties being a mode of regulating trade and commerce with other countries, as well as an exercise of the taxing power, the right of State Governments to import goods is subject to the Customs laws of the Commonwealth. Further, the rule has reference only to the performance of the functions of Government within the Commonwealth, and, therefore, cannot be applied to the importation by a State Government of goods to be afterwards used in connection with one of its instrumentalities. The levying of duties of Customs , is not the imposition of a tax upon property within the meaning of s. 114 of the Constitution. Even if the words of the section are capable of that meaning, it is not the only or necessary meaning, and should be rejected as inconsistent with the plain provisions of the Constitution conferring upon the Commonwealth exclusive power to impose duties of Customs, and to regulate trade and commerce. Per Griffith, C.J., Barton, J., O'Connor, J., and Higgins, J. — Customs duties, whether capable or not of being included in the word " tax," are not a tax upon property in the sense in which that expression is used in s. 114, being imposed upon the act of importation, not upon the goods themselves in their character as property. Per Isaacs, J. — ^Duties of Customs, as 86 TAXATION OF PUBLIC PROPERTY. 63 & 64 Vic. ordinarily understood, and as enacted in tlie Customs Act, are imposed C. 12, on the goods tiemselves, and, therefore, " on property " within the SS. 114-117 meaning of s. Hi, but do not come within the meaning of the word " tax " as used in that section and the Constitution generally. Hdd, therefore, following The King v. Sutton (5 C.L.E. 789), thatthe Govern- ment of the State of New South Wales was liable to pay Customs duty on steel rails imported by the State for use in connection with the Government railways of the State. Attorney-General of N.S.W. v. Collector OF Customs for N.S.W., F.C., 5 C.L.E. 818. Special leave to appeal to the Privy Council was refused. See Attorney-General FOR N.S.W. V. Collector of Customs for N.S.W., (1909) A.C. 345. states not to coin money. 115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts. Commonwealth 116. The Commonwealth shall not make any law for not to legislate " In respect of establishing any religion, or for imposing any religious obser- vance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any oflSce or public trust under the Commonwealth. RightB ot residents in States. 117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or dis- crimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. Discrimination between residents of different States — "Resident," meaning of— The Constitution (63 and 64 Vict. c. 12), s. 117 — "Bona fide residents of and domiciled in " — ^Administration Act 1903 (W.A.), (1903 No. 13), s. 86.— The Administration Act 1903 (W.A.), s. 86, imposes a duty on the final balance of the real and personal estate of the deceased according to fixed rates, and contains a proviso that iu so far as beneficial interests pass to persons bona fide residents of and domiciled in Western Austraha, and occupying towards the deceased a certain relationship, duty shall be calculated so as to charge only one-half of the percentage upon the property so acquired by such persons. The plaintifis, executors of the will of E.W.D., late of Western Australia, paid succession duty at the rate of nine per cent, under the above section on a sum of £8,055, representing the value of property passing under the will to one A.E.D., who, at the death of the testator was a British subject, bona fide resident, and domiciled in Queensland, and who occupied towards the deceased the required relationship. The payment was made under protest, and the plaintifis now sued to recover half the amount paid, on the ground that the section of the Act under which it was claimed, worked a discrimination contrary to s. 117 of the Constitution. Held, that the real ground of the discrimination prescribed by the section of the Administration Act 1903 was domicil COMMONWEALTH OF AUSTRALIA CONSTITUTION. 87 and not residence, and that, consequently, the enactment was not void 63 & 64 ViC. under s. 117 of the Constitution, as setting up a discrimination between C. 12. the residents of different States. Per Barton, J. — " It is discrimination SS. 1 1 7-1 1 9 on the sole ground of residence outside the legislating State that the Constitution aims at in s. 117." Davies and Jones v. Western AusTEALiA, P.C, 2 C.L.E. 29. Discrimination between residents of different States— Factories Act (W.A.), (No. 22 of 1904), s. 46— Case removed under s. 5 of Judiciary Act 1907 (No. 8 of 1907)— Judiciary Act 1903 (No. 6 of 1903), s. 18— The Constitution (63 and 64 Vict. c. 12), s. 117.— The appellant was convicted in a Court of Petty Sessions of an offence under the Factories Act 1904 of which offence it was an element that there should be employed a Chinese who had not been so employed on or before 1st November, 1903. Objection was taken to the validity of the Act, on the ground of its imposiag a discrimination between residents of different States. A case was stated by the magistrate for the consideration of the Supreme Court, which, on the assumption that the case fell within s. 5 of the Judiciary Act 1907, ordered the proceedings to be transmitted to the High Court. Hdd, that no question as to the limits int&r se of the con- stitutional powers of the Commonwealth and the States was in question, and that therefore the Supreme Court had power to determine the case. But, hdd, that the case should under the circumstances be treated as a case stated by the Supreme Court under s. 18 of the Judiciary Act 1903 for the consideration of the High Court. Held, that whether the Factories Act did or did not apply to Chinese who were employed in a factory on 1st November, 1903, in another State, the provision was not uhra vires the legislature of Western Australia as discriminating between residents of different States ; also that the construction of the Act was a matter of which the High Court had not original jurisdiction, but was a matter which they could only determine on appeal from the Supreme Court of Western Australia. The case was accordingly remitted to the Supreme Court for determination. Lee Fay v. Vincent, F.C, 7 C.L.E. 389. 118. Full faith and credit shall be given, throughout the Becognition of ISiWS &G of Commonwealth, to the laws, the public Acts and records, and states. the judicial proceedings, of every State. As to recognition of State Laws and Records, see — State Laws and Records Recognition (1901 No. 5). 119. The Commonwealth shall protect every State ^;°i^o^}°'^ of ^ ■' states from against invasion and, on the application of the Executive ^Jgf^™ ""'^ Government of the State, against domestic violence. As to protection of States from domestic violence, see — Defence, 1903-1912, s. 51 (1903 No. 20, s. 51). 88 OFFENDERS AGAINST COMMONWEALTH LAWS. 63 & 64 Vic. 120. Every State shall make provision for the detention *■ J*" in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punish- oflerSers°' ment of persons convicted of such offences, and the Parliament of the^cJfm- of the Commonwealth may make laws to give effect to this wealth. provision. - CHAPiEK VI. CHAPTER VI. New States. New States. New states 121. The Parliament may admit to the Commonwealth may be admitted or or establish new states, and may upon such admission or estab- lishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. Government of 122. The Parliament may make laws for the government territories. ■' ^ of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen 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 Par- liament to the extent and on the terms which it thinks fit. See Defence, 1903-1912, s. 49 (1903 No. 20, s. 49). Judiciary, 1903-1912, ss. 11, 86 {g) (1903 No. 6, ss. 11, 86 (g) ). Wireless Telegraphy (1905 No. 8), s. 2. Papua (1905 No. 9). Patents, 1903-1909, s. 4 (a) (1909 No. 17, s. 3). Seat of Government Acceptance (1909 No. 23). Northern Territory Acceptance (1910 No. 20). Seat of Government (Administration) (1910 No. 25). Northern Territory Administration (1910 No. 27). limits of States. Aiterationof 123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State and the approval of the majority of the electors of the State voting upon the ques- tion, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or altera- tion of territory in relation to any State affected. COMMONWEALTH OF AUSTRALIA CONSTITUTION. 89 124. A new State may be formed by separation of terri- 63 & 64 Vic. tory from a State, but only with the consent of the Parliament *■ ^2. SS 121-126 thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent ^ev™ totes."' of the Parliaments of the States affected. CHAPTER VII. CHAPiEii vir. MlSOELLAS- MlSCELLANEOUS. ^°^^- 125. The seat of Government of the Commonwealth shall Government. be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Common- wealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales and be distant not less than 100 miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government. See Judiciary, 1903-1912, s. 10 (1903 No. 6, s. 10). Seat of Government (1904 No. 7), repealed by Seat of Govern- ment (1908 No. 24). Commonwealth Conciliation and Arbitration (1904-1911), s. 52 (1904 No. 13, s. 52). Seat of Government (1908 No. 24). Seat of Government (Acceptance) (1909 No. 23). Seat of Government (Administration) (1910 No. 25). 126. The Queen mav authorise the Governor-General to Power to Her " . Majesty to appoint any person, or any persons jointly or severally, to be his authorise deputy or deputies within any part of the Commonwealth, and General to in that capacity to exercise during the pleasure of the Governor- deputies. General such powers and functions of .the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen ; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-(ieneral himself of any power or function. 90 ABOEIGINES. 63 & 64 Vic. 127. In reckoning the numbers of the people of the Com- SS m^iaa "^^^^^^It^^' o^ of a state or other part of the Commonwealth, ' aboriginal natives shall not be counted. Aborigines not to be counted in reclconing population. Chapter VIII. Alteration OF Constitution. Mode of altering the Constitution. CHAPTER VIII. Alteration of the Constitution. 128. This Constitution shall not be altered except in the following manner: — The proposed law for the alteration thereof must be passed by an absolute majority of each House of the the Parlia- ment, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State to the electors qualified to Tote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority and the other House rejects or fails to pass it or passes it with any amendment to which the first-men- tioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first- mentioned House, and either with or without any amendments subsequently agreed to by both Houses to the electors in each State qualified to vote for the election of the House of Repre- sentatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament pre- scribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth only one-half of the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the COMMONWEALTH OF AUSTRALIA CONSTITUTION. 91 electors voting approve the proposed law, and if a majority of 63&64ViC. all the electors voting also approve the proposed law, it shall 'jj-, g . be presented to the Governor-General for the Queen's assent. " ' No alteration diminishing the proportionate representa- tion of any State in either House of the Parliament, or the mini- mum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise alter- ing the limits of the State, or in any manner affecting the pro- visions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. See Referendum (Constitution Alteration), 1906-1912 (1906 No.ll, 1909 No. 20, 1910 No. 31, 1912 No. 17, 1912 No. 35). Constitution Alteration (Senate Elections) (1907 No. 1) ; as to rotation of Senators ; and extension of terms of service of Senators whose places would have become* vacant at the expiration of 1909, until 30th June, 1910. Constitution Alteration (State Debts) (1910 No. 3) ; altering s. 105 of the Constitution, as to what State debts the Commonwealth can take over. SCHEDULE. OATH. I, A.B., do swear that T will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors, according to law. So Hem- me God ! AFFIRMATION. I, A.B., do solemnly and sincerely aflfirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and suc- cessors, according to law. (Note. — The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the lime- being is to he suhatituted from time to time. ) Commonwealtb of Huatralia (Sajette. 1st JANUARY, 1901. By the QUEEN. A PROCLAMATION, ViCTOKIA R. Whereas 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 AustraMa," it is enacted that it shall 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 Ssh. »» PROCLAMATION. 63 & 64 Vic. Tasmania, and also, if Her Majesty is satisfied that the people of Western C '12. AustraMa have agreed thereto, of Western Australia, shall be uinted in a Federal Commonwealth under the name of the Commonwealth of Australia. And whereas We are satisfied that the people of Western Australia have agreed thereto accordingly. We, therefore, by and with the advice of Our Privy Council, have thought fit to issue this Our Royal Proclamation, and We do hereby declare that on and after the First day of January, One thousand nine hundred and one the people of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. Given at Our Court at Balmoral, this Seventeenth day of September, in the Year of our Lord One thousand nine hundred, and in the Sixty - fourth Year of Our Reign. GOD SAVE THE QUEEN ! PROCLAMATION. Australia, l By His Excellercy The Right Honourable The Earl of to wit. I HoPETOTjif, a Member of Her Majesty's Most Honorable Privy Council, Knight of the Most Ancient and Most L.s. Noble Order of the Thistle, Knight Grand Cross of the Most Distinguished Order of Saint Michael and Saint HoPETOTJN, George, Knight Grand' Cross of the Royal Victorian Order, Governor-General and Conunander-in-Chief of Qovernor -General. the Commonwealth of Australia. Whereas Her Majesty has been graciously pleased by Commission under Her Royal Sign Manual and Signet, bearing date at St. James the twenty -ninth day of October, one thousand nine hundred, to constitute and appoint me, The Right Honorable John Adelan Louis, Eael or Hopetoun, a Member of Her Majesty's Most Honorable Privy Council, Knight of the Most Ancient and Most Noble Order of the Thistle, Knight Grand Cross of the Most Distinguished Order of Saint Michael and Saint George, Kinght Grand Cross of the Royal Victorian Order, to be Governor -General and Commander-in-Chief in and over Her Majesty's Commonwealth of Australia, I do hereby proclaim and declare that I have this day taken the prescribed Oaths before His Excellency the Lieutenant-Governor of ovu- State of New South Wales, in the Common- wealth of Australia, and that I have assumed the said Office of Governor- General and Commander-in-Chief of the Commonwealth of Australia accord- ingly. Given under my Hand and Seal, at Sydney, this first day of January, in the year of our Lord one thousand nine hundred and one, and in the sixty -fourth year of Her Majesty's Reign. By His Excellency's Command, EDMUND BARTON. GOD SAVE THE QUEEN ! COMMONWEALTH OF AUSTRALIA. Letters Patent, dated 29th October, 1900. Preamble. Recites Im- perial Act 63 and 64 Vict. c. 12 and Froclaimation of 17th September 1000. 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. Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, Empress of India : To all to whom these Presents shall come. Greeting : WHEREAS, by an Act of Parliament passed on the Ninth day of July, 1900, in the Sixty -fourth year of Our Reign, intituled "An Act to constitute COMMONWEAIiXH OF AUSTRALIA CONSTITUTION. 03 the Commonwealth of Australia," it is enacted that " it shall be lawful for the 63 & 64 ViC. " Queen, with the advice of the Privy Council, to declare by Proclamation that, |. -in " on and after a day therein appointed, not being later than one year after the gl . * " passing of this Act, the people of New South Wales, Victoria, South Australia, 5CI1. " Queensland, and Tasmania, and also, if Her Majesty 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 Common- " wealth of Australia. But the Queen may, at any time after the proclama- " tion, appoint a Governor-General for the Commonwealth : " And whereas We did on the Seventeenth day of September One thousand nine hundred, by and with the advice of Our Privy Council, declare by Pro- clamation that, on and after the First day of January One thousand nine hundred and one, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also Western Australia, should be united in a Federal Commonwealth under the name of the Commonwealth of Australia : And whereas by the said recited Act certain powers, functions, and authorities were declared to be vested in the Governor-General : And whereas We are desirous of making effectual and permanent provision for the Office of Gover- nor-General and Commander-in-Chief in and over Our said Commonwealth of Australia, without making new Letters Patent on each demise of the said Office : Now know ye that We 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 Commander-in-Chief (herein-after office of called the Governor -General) in and over Our Commonwealth of Governor- Australia (herein-after called Our said Commonwealth), and that the person General and who shall fill the said Office of Governor -General shall be from time to time chief ^'^"™" appointed by Commission under Our Sign Manual and Signet. And We do constituted. hereby authorise 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 powers and authorities Governor- granted or appointed him by virtue of " The Commonwealth of Australia General's Constitution Act, 1900," and of these present Letters Patent and of such Futifn^f^ef Commission as may be 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 Manual 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. II. There shall be a Great Seal of and for Our said Commonwealth which Great Seal. Our 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 Private Seal of Our said Governor -General may be used as the Great Seal of the Commonwealth of Australia. III. The Governor-General may constitute and appoint, in Our name and Appointment on Our behalf, all such Judges, Commissioners, Justices of the Peace, and other 2' ^i?^^^'v 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 lawfully may, upon Suspension or sufficient cause to him appearing, may remove from his office, or suspend from 0^°^* ™ the exrecise of the same, any person exercising any office of Our said Com- monwealth, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us in Qur name or under Our authority. V. The Governor -General may on Our behalf exercise all powers under the Summoning, Commonwealth of Australia Constitution Act, 1900, or otherwise in respect of ^i^^aMnsibe the summoning, proroguing, or dissolving the Parliament of Our said Common- Common- wealth. weaUh VI. 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 exercise, during the pleasure of the Governor-General, such powers and fune- 94 LETTERS PATENT. 63 & 64 Vic. c. 12. Sch. Power to appoint Deputies . Succession to the Government. Proviso. Oatlis of office to be taken. Officers and others to obey and assist the Governor- General. Power reserved to Her Majesty to revoke, alter, or amend the present Letters Patent. Publication of Letters Patent. tions of the said Governor -General as he thinks fit to assign to such Deputy or Deputies, subject to any limitations expressed or directions given by Us : Now We do hereby authorise and empower Our said Governor -General, subject to such limitations and directions as aforesaid, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part of Our said Commonwealth of Australia, and in that capacity to exercise, during his pleasure, such of his powers and functions as he may deem it neces- sary or expedient to assign to him or them : Provided always, that the ap- pointment 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 pleasure to be that, in the event of the death, incapacity, remioval, or absence of Our said Governor-General out of Our said Commonwealth, all and every the powers and authorities herein granted to him shall, until Our further pleasure is signified therein, be vested in such person as may be appointed by Us under Our Sign Manual and Signet to be Our Lieutenant-Governor of Our said Commonwealth ; or, if there shall be no such Lieutenant-Governor in Our said Commonwealth, then in such person or persons as may be appointed by Us under Our Sign Manual and Signet to administer the Government of the same. No such powers or authori- ties shall vest in such Lieutenant-Governor, or such other person or persons, until he or they shall have taken the oaths appointed to be taken by the Governor-General of Our said Commonwealth, and in the manner provided by the Instructions accompanying these our Letters Patent. "VTTI. And We do hereby require and command all Our Officers and Ministers, Civil and Military, and all other the inhabitants of Our said Com- monwealth, to be obedient, 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 Our Letters Patent, administer the Government of Our said Commonwealth. IX. And We do hereby reserve to Ourselves, Our heirs and successors, full power and authority from time to time to revoke, alter, or amend these Our Letters Patent as to Us or them shall seem meet. 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 Governor - General shall think fit within Our said Commonwealth of Australia. In 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-fourth Year of Our Reign. By Warrant under the Queen's Sign Manual. MUIR MACKENZIE. Letters Patent constituting the Office of Govebnoe-Genekai and Commander-in-Chief of the Commonwealth op Australia. COMMONWEALTH OF AUSTRALIA. COMMISSION passed under the Royal Sign Manual and Signet, appointing the Right Honourable the Earl of Hopetoun, P.O., K.T., G.C.M.G., G.C.V.O,, to be Governor -General and Commander-in-Chief of the Commonwealth of Australia. Bated ZMh October, 1900. VICTORIA R. I. Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, Empress of India ; To Our Right Trusty and Right Well -Beloved Cousin and Councillor, John Adrian Louis, Earl of Hopetoun, Knight of Our Most Ancient and Most Noble COMMONWEALTH OF AUSTRALIA CONSTITUTION. 95 Order of the Thistle, Knight Grand Cross of Our Most Distinguished 63 & 64 ViC. Order of Saint Michael and Saint George, Knight Grand Cross of the « -to Royal Victorian Order, Greeting. J . ' Sen. We do, by this Our Commission under Our Sign Manual and Signet, appoint you, the said John Adrian Louis, Earl of Hopetoun, to be, during Our Ap^^'P^JJ^S* "' pleasure. Our Governor-General and Commander-in-Chief in and over Our t{J| Eafl of Commonwealth of Australia, with all the powers, rights, privileges, and Hopetoun, advantages to the said Office belonging or appertaining. r'rlvw^''^' II. And Wo do hereby authorise, empower, and command you to exer- G.C.V.O., as cise and perform all and singular the powers and directions contained in Our ceneraf^ Letters Patent under the Great Seal of Our United Kingdom of Great Britain and Ireland, beariag date at Westminster the Twenty -ninth day of October, Kecites Letters 1900, constituting the said Office of Governor -General and Commander-in- tuting the Chief, or in any other Our Letters Patent adding to, amending, or substituted otBce of for the same and according to such Orders and Instructions as you may Governor- receive irom Us. III. And We do hereby command all and .singular Our Officers, Ministers, ''J^'^^I?' *'^' ^ and loving subjects in Our said Commonwealth, and all others whom it may Governor- concem, to take due notice hereof, and to give their ready obedience accor- General. dingly. 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 Honourable tho Eabi. op Hopetoun, P.C, K.T., G.C.M.G., G.C.V.O., to be Governor -General and Commander-in-Chief of the Commonwealth or Australia. COMMONWEALTH OF AUSTRALIA. INSTRUCTIONS passed under the Royal Sign Manual and Signet to the Govemor-Beneral and Commander-in-Chief of the Commonwealth of Australia. VICTORIA R. I. INSTRUCTIONS to Our Governor-General and Commander-in-Chief in and Dated 29th over Our Commonwealth of Australia, or in his absence, to Our October, 1900 Lieutenant-Governor or the Officer for the time being administering the Government 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. Whekeas by certain Letters Patent bearing even date herewith, We have Preamble. constituted, ordered, and declared that there shall be a Governor-General and Commander-in-Chief (therein and hereinafter called the Govemor- •General), in and over Our Commonwealth of Australia (therein and hereinafter ■called Our said Commonwealth). And We have thereby authorised and &|^^^^ ^^n*tf-* •commanded Our said Governor-General to do and execute in due manner all tuting tte * '" things that shall belong to his said Command, and to the trust We have Office of reposed in him, according to the several powers and authorities granted or Jjovernoi- appointed him by virtue of the said Letters Patent and of such Commission as may be issued to him under Oiu: Sign Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign Manual 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 96 GOVEENOR-GENEEAL'S INSTRUCTIONS. 63 & 64 Vic. hereafter be in force in Our said Commonwealth. Now, therefore, We do, C. 12. ^y these Our Instructions under Our Sign Manual and Signet, declare Our Sch. pleasure to be as follows 1. Our first-appointed Governor -General shall, with all due solemnity. Publication of cause Our Commission, under Our Sign Manual and Signet, appointing Our G^M ars'^"""' ^^^^ Governor -General, to be read and published in the presence of Our Governors, or in their absence of Our Lieutenant-Governors of Our Colonies of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia and such of the Members of the Executive Council, Judges, and Members of the Legislatures of our said Colonies as are able to attend. 2. Our said Governor-General of Our said Commonwealth shall take the Oath of Allegiarce in the form provided by an Act passed in the Session holden in the thirty-first and thirty -second years of Our Reign, intituled "An Act to amend the Law relating to Promissory Oaths ; " and likewise the usual oath for the due execution of the Office of Our Governor-General in and over Our said Commonwealth, and for the due and impartial administration of justice ; which Oaths Our said Governor and Commander-in-Chief of Our Colony of New South Wales, or, in his absence. Our Lieutenanf -Governor or other ofiicer administering the Government of Our said Colony, shall and he is hereby required to tender and administer unto him. 3. Every Governor-General, and every other officer appointed to adminis- ter the Government of Our said Conmionwealth after Our said first appointed Governor-General, shall, with all due solemnity, cause Our CommissioD, under Our Sign Manual and Signet, appointing Our said Governor-General, to be read and published in the presence of the Chief Justice of the High Court of Australia, or some other Judge of the said Court. 4. Every Governor-General, and every other OfiBcer appointed to ad- minister the Government of Our said Commonwealth after Our said first appointed Governor-General, shall take the Oath of Allegiance in the form provided by an Act passed in the Session holder ir the thirty -first and thirty- second years of Our Reign, intituled " An Act to amend the Law relating to Promissory Oaths ; " and likewise the usual Oath for the due execution of the Office of Our Governor -General in and over Our said Commonwealth, and for the due and impartial administration of justice ; which Oaths the Chief Justice of the High Court of Australia, or some other Judge of the said Court, shall and he is hereby required to tender and administer unto him or them. 5. And We do authorise and require Our said Governor-General from time to time, by himself or by any other person to be authorised by him in that behalf, to administer to all and to every persons or person, as he shall think fit, who shall hold any office or place of trust or profit in Our said Commonwealth, the said Oath of Allegiance, together with such other Oath or Oaths as may from time to time be prescribed by any laws or statutes in that behalf mad^ and provided. 6. And We do require Our said Governor -General to communicate forth- with to the Members of the Executive Council for Our said Commonwealth these Our Instructions, and likewise all such others, from time to time, as he shall find convenient for Our service to be imparted to them. 7. Our said Governor-General is to take care that all laws assented to by him in Our name, or reserved for the signification of Ovu- pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cases as may seem to him necessary, with such explana- tory observations as may be required to exhibit the reasons and occasions for proposing such laws ; and he shall also transmit fair copies of the Journals and Minutes of the proceedings of the Parliament of Our said Commonwealth, which he is to require from the Clerks, or other proper officers in that behalf of the said Parliament. Grant of 8. And We do further authorise and empower Our said Governor- pardons. General, as he shall see occasion, in Our name and on Our behalf, when any crime or offence against the Laws of Our Commonweath has been committed for which the offender may be tried within Our said Commonwealth, to grant commission. Oatlis to be taken by first Governor- General, &c. Imperial Act, 31 & 32 Vict. c. 72. Publication of the Governor- General's commission after the first appointment. Oaths to be taken by Governor- General, &c.. after the first appointment. Imperial Act, 31 & 32 Vict, c. 72. Oaths to be administered by the Governor- General. Governor- General to communicate instructions to the Executive Council. Laws sent home to have marginal abstracts. Journals and Minutes. COMMONWEALTH OF AUSTRALIA CONSTITUTION. 97 a pardon to any accomplice in such crime or offence who shall give such infor- 63 & 64 VlCa mation as shall lead to the conviction of the principal offender, or of any one f •|0 of such offenders if more than one ; and further, to grant to any offender ^j^ convicted of any such crime or offence in any Court, or before any Judge, SCn. Justice, or Magistrate, within Our said Conmionwealth, a pardon, either free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to Our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures which may become EemiBsion of due and payable to Us. Provided always, that Our said Governor-General fines. shall not in any case, except where the offence has been of a political nature, proviso make it a condition of any pardon or remission of sentence that the offender Banishment shall be banished from or shall absent himself from Our said Commonwealth. J"'"™ **•*_ And We do hereby direct and enjoin that Our said Governor-General shall wealth not pardon or reprieve any such offender without first receiving in capital prohibited. cases the advice of the Executive Council for Our said Commonwealth, and „ .. in other cases the advice of one, at least of his Ministers ; and in any case in political which such pardon or reprieve might directly affect the interests of Our offences. Empire, or of any country or place beyond the jurisdiction of the Govern- ment of Our said Commonwealth, Our said Governor -General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. 9. And whereas great prejudice may happen to Our service and to the Governor- security of Our said Commonwealth by the absence of Our said Governor- ^bselice * General, he shall not, upon any pretence whatever, quit Ova said Common- wealth without having first obtained leave from Us for so doing under Our Sign Manual and Signet, or through one of Our Principal Secretaries of State. VICTORIA E. I. Government House, Sydney, 1st January, 1001. His Excellency the Governor-General directs it to be notified that His Excel- lency, with the advice of the Federal Executive Council, has established the following Departments of State of the Commonwealth, 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. By His Excellency's Command, EDMUND BARTON. CONSTITUTION ACT INDEX COMMONWEALTH OF CONSTITUTION 63 & 64 Vic. c. AUSTRALIA ACT, 12. Abolition of office of public servant, gratuity on . . Aboriginal — natives, not to be counted in reckoning population races Absence — of President of Senate . . of Speaker vacancy by, of Senator Act — of place of member by direct and indirect effect of extension of, to Queen's successors form and substance of not yet assented to, incorporation of Admiralty, jurisdiction of High Court as to Affirmation— of allegiance Schedule . . Aged and slow and infirm workers , Alien friends, right to expel Aliens — admission of, upon conditions deportation of . . All judgments, decrees, orders and sentences-interpretation Allegiance — affirmation of . . oath of . . to Foreign power, disqualification consequent on . . Allowance to members .^ Alteration — Commonwealth of Austral a Constitution Act s. 13, rotation of Senators s. 48, allowance to members s. 71, number of Justices of High Court s. 87, Braddon clause s. 105, taking over pubUc debts of States PAGE 71 90 32 10 15 10 15 51 1 51 51 67 16 91 40 29 29 29 61 16 16 16 18 7 18 57 74 81 100 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Alteration — Continued. of Constitution . . of number of members of State limits Amendment — of proposed law to increase burden or charge on people, Senate may not make of proposed laws appropriating revenue of moneys for annual Government services American decisions — application of . . weight to be attached to Amount appealable Analysis of introduction Appeal — appealable amount conditions of from Court exercising Federal jurisdiction . . from Judge of Supreme Court of State, sitting as Judge of first instance from justices from order of Supreme Court re-admitting to practice a solicitor struck off for misconduct . . from Registrar under Commonwealth Conciliation and Arbitration Act, 1904, President may state a case on . . 90 12 88 50 50 47 44 57 xix 57 58 57 58 60 62 20 from Supreme Courts of State .. 58, 60, 61 from Supreme Court to Privy Council . 49 leave to, rule regulating . . . 58 to High Court . . . 59 to Privy Council • . . . 63 reservation of proposed Bills contain) mg limitation of 63 Appellate jurisdiction— of High Court . . * r 59 whether conferred on State Courts . . 69 Apprentices, wages of . 40 Appropriation Act, effect of . 47 Appropriation Bills . 60 Arbitration . 36 meaning of . 40 Arbitration Court, award of State . 38 INDEX. Assent, the Royal, to bills . . Association — of employees in one State registration of Astronomical observations Audit Australian citizen Australian nationality Award — in respect of matters not claimed in plaint inconsistent with State law . . of State Arbitration Court validity of Ballot paper — blank, writing name of candidate on cross within square form of . . Banishment from Commonwealth forbidden Banking, other than State banking Bankruptcy disqualification consequent on Banks, incorporation of Beacons transferred department Bills- reserved, signification of Queen's pleasure on royal assent to Bills of Exchange Board of reference, delegation of powers to Borrowing money on the public credit of the Commonwealth Boundary between States, dispute as to . . Bounties — control of pajmaent of exceptions as to exclusive powers as to . . mining for gold, silver, or other metals and on pro- duction or export of goods power as to Braddon clause Brewers' license fees not duties of excise . . 101 AGE 53 37 37 28 79 32 32 40 40 38 40 17 17 17 97 28 29 16 28 28 55 53 53 29 40 27 65 74 75 75 75 27 74 74 102 COMMON WEALTH OF AUSTRALIA CONSTITUTION ACT. PAGE 17 2 28 55 23 37 9 28 64 64 Bribery, setting election aside for . . British ships, operation of constitution and laws on what Buoys transferred department Cargo, what is not, within Seamen's Compensation Act, 1909 No. 29, s. 4 Case, power of President of Commonwealth Court of Con- ciliation and Arbitration to state a Casual vacancies in Senate Census . . Certificate — by High Court, as to special reasons . . . . 63, by Privy Council, as to special reasons . . 63, 64 of High Court, as to hmits, inter se, of constitutional powers of Commonwealth and States 63 Chambers — appeal from order of Judge of Supreme Court in, to High Court judgment pronounced by single Judge in Charter of Justice, s. 10 Civil process of States Civil servants, appointment and removal of Claim, severability of Coast Defence Appropriation Act, 1908, money priated under . . Coinage Coining of money by State forbidden Colonial Boundaries Act, 58 and 59 Vic. c. 34 Commander in Chief, constitution of office of Commencement of Act Commerce, Trade, etc. Commission — Inter-State to Earl of Hopetoun . . Common Powers xxu, xxiv-xxvm Common rule, invahdity of provisions as to, in Common- wealth Conciliation and Arbitration Act, 1904- 1910, ss. 19, 38 (/) (gr) 42 Commonwealth — attempted interference by, with State instrumen- talities . . . . . . . . . . .19 . 60 . 58 . 62 31 . 55 • 40 appro . 70 . 28 . 86 3 . 93 2 . 19 . 80 . 94 INDEX. 103 PAGE Commonwealth — Continued . authority as to matters placed by Constitution within its jurisdiction . . . . . . . . . . 47 ConciUation and Arbitration Act ,1904, interpretation of 20 current obhgations of transferred department to be assumed by . . . . . . . . . . 73 definition . . . . . . . . . . . . . . 3 inconsistency of, and State law . . . . . . 83 interference with legislative or executive power of . . 49 jurisdiction of High Court where, or person suing or being sued on behalf of, is party . . . . 65 laws for the peace, order, and good government of . . 46 legislation of, validity of . . . . . . 30, 5 1 municipal rate on property of . . . . . . 84 offenders against laws of . . . . . . . . 88 officer of, mandamus, injunction or prohibition against 66 Parhament, summoning, proroguing, or dissolving . . 93 powers of . . . . . . . . . . . . 44 preference not to be given by . . . . . . 80 proceedings against . . . . . . . . . . 69 proclamation of . . . . . . . . . . 1 protection of State by, against invasion and domestic violence . . . . . . . . . . . . 87 right of State to waters and rivers not to be abridged by 80 State Governments, how far subject to legislation of 49 taxation of property of, by State . . . . . . 84 trade within, to be free . . . . . . . . . . 75 Compensation — mode of computation of, for transferred property . . 73 for transferred property . . . . . . . . 73 Compulsory retirement, gratuity in case of . . 57 Conciliation 36 Concurrent Powers xxvi.-xxviii. Conflict of laws xx. Conflicting decisions, Privy Council and High Court . . 44 Consolidated Revenue Fund 70 expenditure charged on . . . . . . . . 71 Constitution — alteration of 7, 18, 57, 74 81, 90 construction of . . . . . . . . • • . . 85 interpretation of, reference to draft bills . . . . 78 104 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Con stitution — Continued . matters for which, makes provision until this Par liament otherwise provides of State . . of State, alteration of . . operation of original jurisdiction of High Court in matters arising under, or involving its interpretation statement of principles applicable to the interpre tation of the Constitution And see Alteration. Constitutional alterations, enacting of Constitutional powers, appeal to Privy Council when permitted from High Court as to Construction of Constitution Consuls, jurisdiction of High Court as to matters affecting Conviction, disqualification consequent on Copyrights Corporations — control of creation of financial . . foreign trading Countries, original jurisdiction of High Court in matters affecting representatives of other . . Criminal process of States Criminals, infiux of Crown, rule as to legislation binding Currency Custody of infants Customs — collection and control of control of, as to goods imported by State duties of Western Australia . . exclusive powers of duties, levying of, not imposition of tax on property within, s. 114 transferred department uniform duties of Debts, public, taking over, of States Defence, naval and military 42 82 82 2 64 22 82 63 84 65 16 29 30 30 30 30 30 65 31 33 49 28 31 74 49 78 75 85 56 74 81 27 INDEX. 105 Definition — Commonwealth immigrant original States Sovran Statutes Statute General The States Delegated law-making powers Delegatio n of powers by Court of Concihation and Arbitration Departments transferred, exclusive power to make laws for Deportation of aliens . . Deputies, power to appoint Designs, patents of . . Dictation test Diminution, interpretation . . Disagreement between the Houses Disallowance by the Queen Discrimination — against wine produced in another State between residents of different States between States and parts of States in respect of taxation, forbidden by State railways invaUdity of Excise Tariff Act, 1906 No. 16, on ground of authorising method of under 51 (ii.) what is the Dispute — as to duty submission of, by plaint temporary cessation of work owing to test of Disputed election Disqualification — excepted persons of member of House of Representatives of Senator . . . . . . . . . . , . . penalty for sitting when disqualified . . vacancy happening on Dissolution — of Parliament simultaneous, of Senate and House of Representatives Distilled liquid to be subject to State law . . 3 32 3 XX. XX. 3 . . XXX. 40 46 29 94 29 32 82 52 53 .. 77 86, 87 24 81 26 25 26 51 37 37 42 18 16 16 16 18 17 5 52 84 106 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Distribution of surplus revenue District Court exercising Federal power . . Divisions, electoral Divorce Domestic affairs of State, interference with Domestic violence, protection of State against Domicil Draft bills, reference to, of 1891, 1897, 1898, in interpre tation of constitution Duration of House of Representatives Duties — collected, tariff subsequently altered of Customs, laws imposing uniform what are and excise, allocation of proceeds of not more than one quarter of, during ten years, to be applied by Common- wealth to its expenditure of excise, brewers' license fees not laws imposing on foreign goods right to recover money paid for uniform, payment to States before value of goods for purpose of . . outside packages in which goods are imported not included in value of goods under s. 154 (a) of Customs Act . . Election — 78 44 12 31 25 87 32 78 12 51 51 74 51 74 74 74 51 76 51 74 51 51 disputed . . 18 general, writs for 14 of Senators, method of.. 6 of Speaker 15 Electoral Divisions 12 Electors — qualification of, of members of House of Represen tatives . . . . . . . . ! . . 13 right of, of States 15 Emigration 32 Employees, demand by 38 Employer, relationship of, and employee . . 37 Evidence, depositions made in Natal 34 INDEX. 107 PAGE Exchange, bills of 29 Excise — collection and control of . . . . . . . . 74 exclusive powers of . . . . . . . . . . 75 transferred department . . . . . . . . . . 55 Excise Tariff, 1906 No. 16— invalidity of, on ground that it authorises discrimination 25 is an Act to regulate the manufacture of agricultural implements, and therefore not an exercise of the powers of taxation conferred by the Con- stitution . . . . . . . . . . . . 25 Exclusive power of Commonwealth, matters declared within 50 Exclusive powers, Commonwealth xxi, xxii-xxiv State . . . . . . . . xxviii-xxix Execution of power vested in Parhament, or either House thereof, or in Government of Commonwealth, or in Federal Judicature, or in any department or officer of Commonwealth, matters incidental to . . 43 Executive, powers of, as to aliens . . 29 Executive power, vested in Queen . . . . 54 " Existing and accruing rights " of officer in transferred department . . . . . . . . . . . . 55 Expenditure — Consolidated Kevenue Fund, charged with . . 71 what is . . . . . . . . . . . . . . 70 Extending beyond the limits of any one State, meaning of 37, 38, 40 External affairs 33 Extra-territoriality 29 Federal Council Act, repeal 3 Federal Council of Australia — appeal to High Court from . . . . . . . . 59 powers exerciseable by, at estabhshment of constitution 43 Federal Judicature, matters incidental to exercise of powers vested in . . . . . . . . . . 43 Federal jurisdiction — appeal from Court exercising . . . . . . 57 to High Court from Court exercising . . . . 59 Courts exercising . . . . . . . . . . 57 of State Courts, both original and appellate . . 69 State Court exercising, test . . . . . . . . 13 108 C'OJrMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Fermented liq.uid to be subject to State law Financial corporations Fines — proposed law containing provisions for imposition remission of Fisheries in Australian waters beyond territorial limits Foreign Corporations Fugitive offenders surrender of General Election, writs f or . . Gold, bounty on mining for Goods — bounty on production or export of . . importation of, before uniform duties imported before imposition of uniform duties Customs . . by State Government imposition of duties on foreign Government department, matters incidental to exercise powers vested in Government of Commonwealth, matters incidental execution of powers vested in Governor of State — certain powers of, to vest in Governor General issuing writs for election of senators under s. 12 provisions referring to . . Governor-General — absence of acting with advice of Executive Council command of naval and military forces vested in constitution of office of death, incapacity, etc., of deputies of executive power of Queen vested in Governors, certain powers of, to vest in instructions to . . be communicated by oaths, to be administered by taken first by pardons by powers of PAGE . . 184 . . 30 of 50 97 28 30 33 36 14 75 of of to 75 78 76 49 76 43 43 56 8 83 97 54 55 93 94 89 54 56 95 96 96 96 96 4 INDEX. 109 PAGE Governor-General — Continued. provisions relating to . . . . . . . . . . 6 publication of commission of . . . . . . . . 95 recommendations by . . . . . . . . . . 53 salary of . . . . ... . . . . . . . . 5 Governor-General in Council, powers of 55 Gratuity payable to retired officer ia transferred depart- ment . . . . . . . . . . . . . . 56 Great Seal of Commonwealth 93 Guardianship of infants 31 High Court — appeals from, to Privy Council, as to constitutional powers, when permitted . . . . . . 63 appeal to, from Supreme Court of State, although such judgment purported to be final and con- clusive . . . . . . . . . . . . 60 appellate jurisdiction of . . . . . . . . 59 authority of ParMament to confer appellate juris- diction on Court other than . . . . . . 69 certificate by, that question of constitutional powers should be determined by Privy Council . . 63 judgment of, when final . . . . . . 59, 60 judicial power of Commonwealth vested in, and other Federal Courts and Courts invested with Federal jurisdiction jurisdiction of . . justices of, appointment, tenure, and original jurisdiction of . . additional matter claimed under laws of different States . . . . 68 Privy Council and conflicting decisions . . . . 44 relation of, to Supreme Court . . . . . . 45 special leave to appeal by, solicitor struck off roU for misconduct . . . . . . . . . . 62 House of Representatives — constitution of . . . . . . . . . . ..11 duration of . . . . . . . . . . . . 12 minimum members of, for each original State . . 11 privileges of . . . . . . . . . . . . 18 . . 57 40, 57, 58, 61, 61 remuneration 59 .. 65 . . 67 110 COMMONWEALTH OP AUSTRALIA CONSTITUTION ACT. House of Representatives — Continued. quorum of voting in . . Illegal practice immigrant, meaning of Immigration Imperial Parliament, supreme law-making authority for the Empire Incidental matters to execution of vested powers . . Income Tax 44, 49 imposed by State, on salary of Commonwealth officer 48 Inconsistency — of award with State Law, test of of Commonwealth and State law Incorporation of organisation Industrial agreement under State Law Industrial dispute, meaning of Industrial disputes Industry — meaning of subdivided into branches Infants — custody of guardianship of . . Influx of criminals Injunction — against officer of Commonwealth when proper remedy as opposed to Quo Warranto Inquiry by Comptroller-General of Customs Insolvency disqualification consequent on Inspection laws of State, charges for Insurance, other than State insurance Inter-State Commission appeal to High Court on questions of law from appointment, tenure and remuneration of Commls sioners establishment of I nterest on Public Debt of States taken over Interpretation — all judgments, decrees, orders, and sentences . . 61 of Constitution . . . . . . . . . . . . 67 reference to Draft Bills of 1891, 1897, 1898 . . 78 15 15 17 32 32 xix 43 40 83 37 38 37 36 37 38 31 31 33 65 21 30 29 16 84 28 30 60 81 80 82 INDEX. HI Intoxicating liquids to be subject to State law Introduction Invalid pensions Invalidity — as to discrimination of Act, principle of Invasion, protection of State against Inventions, patents of Irrigation, rights of State as regards water of rivers for Issue of writs. Senate election Joint sitting, voting on Judicial power of Commonwealth . . Judicial proceedings, recognition of, of States Judges, appointment of Judgments of Courts of States Jurisdiction acquiescence to, by party seeking prohibition conditions precedent to excess of . . number of justices to exercise of Court of Conciliation and Arbitration of High Court 40, 57, of Parliament of Colony original, of High Court Jury, trial by . . . . , Justices — appeal from . . . . . . . . . . . . 60 number of, to exercise jurisdiction . . . . . . 69 Labour, regulation of conditions of . . . . 25 Land Tax Act, comments on . . 51 Laws — disallowance of . . . . . . . . . . . . 53 inconsistency of Commonwealth and State . . . . 83 made by Parliament, or general jurisdiction of High Court as to matters arising under . . . . 67 recognition of, of States . . . . . . 32, 87 sent home to have marginal abstracts . . . . 96 State, saving of . . . . . . . . . . . . 83 Leave to appeal — rescission of . . . . • • • • • • . . 58 rule regulating . . . . . . ■ • • • . . 58 PAGE 84 XIX -XXX 31 77 20 87 29 80 7 52 30, 57 87 93 31 40 37 37 37 69 37 61 33 65 69 il, 112 COMMONWEALTH OF AUSTKALIA CONSTITUTION ACT. PAGE Legal tender 28 State shall not make anything but gold or silver . . 86 Legislation — for Empire, direct and indirect . . . . xix, xx motive and object of . . . . . . . . . . 2o powers of . . . . . . . . . . . . 50 vaMdity of Commonwealth . . . . . . . . 25 Legislative powers 4 of Parliament . . . . . . . . . . 19 et seq. Legitimacy, presumption of . . 32 Letters Patent 92 power reserved to revoke, alter or amend . . . . 94 "Like goods," meaning of.. .. .. .. ..76 Lighthouses . . 28 transferred department . . . . . . . . 55 Light-Ships 28 transferred department . . . . . . . . 55 Liquor license, discrimination against wine produced in another State . . . . . . . . . . 77 Mandamus — against officer of Commonwealth . . . . . . 65 to State Governor . . . . . . . . . . 8 Maritime matters, jurisdiction of High Court as to . . 67 Marriage 31 Matrimonial causes . . . . 31 Matter between States . . . . . . . . 65 Marines 29 Members — allowance to . . . . . . . . . . . . 18 alteration of number of . . . . . . . . 12 inehgibiUty of, of one House for other . . . . 16 quahfications of . . . . . . . . . . 14 resignation of . . . . . . . . . . . . 15 vacancy of place of, by absence . . . . . . 15 Metals, bounty on mining for . . . . . . 75 Meteorological observations 28 Military defence 27 transferred department . . . . . . . . 55 Military forces — command of . . . . . . . . . . . . 55 State may not raise, without Commonwealth consent 84 Military purposes, control of railways for 36 114 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. PAGE Old Age Pensions ai Old Age Pensions Appropriation Act, 1908, money appro- priated under . . . . . . . . . . . . 70 Opium, prohibition of importation of . . . . . . 22 Orders — House may make, as to privileges and conduct of its business . . . . . . . . . . . . 19 judicial, obtained ex parte . . . . . . 23 Organization, incorporation of . . 3-7 Original jurisdiction — of High Court 65 additional . . . . . . . . . . . . 67 appeals from Justice or Justices exercising . . 59 Original States, definition 3 Originating summons, order on . . .58 Pacific, relations of Commonwealth with islands of . . 34 Paid and payable, interpretation 82 Paper money, issue of . . .28 Paramount powers xxiv xxvi Pardons by Governor-General . . . . . . . . 96 Parental rights . . . . 31 Parliament — dissolution of . . . . . . . . . . . . 5 first session of . . . . . . . . . . . . 5 journals and minutes of, copies of, to be sent home . . 96 legislative powers of . . . . . . . . . 19 matters incidental to execution of powers vested in 43 of United Kingdom, powers exerciseable only by, at date of establishment of constitution . . 43 prorogation of . . . . . . . . . . . . 5 session of, to be at least yearly . . . . . . 5 sessions of . . . . . . . . . . 5 State, saving of power of . . . . . . . . 83 summoning of . . . . . . . . . . . 5 proroguing or dissolving . . . . . . . . 93 Parliamentary Elections, appeal from Supreme Court sitting to determine disputed .. .. ..61 Parties, adding . . . . 38 Patents of inventions and designs . . . . 29 Peace of Commonwealth, laws for the . . . . . . 46 Pecuniary interest, disqualification consequent on, in agreement with Public Service . . . . 16 INDEX. 115 Penalties, proposed law containing provisions for imposi- tion of Penalty, sitting when disqualified . . Pensions — during pleasure of Crown, disqualification consequent on invalid and old age of transferred officers, allocation of . . People of otiier races, special laws as to . . Places acquired for public purposes, exclusive power to make laws for. . Port and port trade Postal services Posts, transferred departments Power — of Commonwealth, invalidity of attempt of State to fetter of Commonwealth and State, limits inter se of of Houses as to legislation of taxation to make laws as to corporations, limits of Practice, powers of Judge sitting in Chambers to set aside an order made ex farte by another Judge, sitting under Seamen's Compensation Act Preference — by State Railways Commonwealth not to give given under Excise Tariff Act, 1906 No. 16 Prerogative rights of Crown President of Senate — absence of casting vote of, to be in negative election of Privileges of Houses Privy Council' — and High Court, conflicting decisions appeal to . . . . . . . . . . 59, 60, from High Court, as to constitutional powers, when permitted appeal from Supreme Court to limitations of appeals to, legislation as to 50 18 16 31 71 32 46 23 27 55 48 44 50 51 30 23 81 80 26 45 10 11 10 18 44 63 63 49 63 116 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Proclamation — disallowance by . . . . . . . . . . 53 of Commonwealth . . . . . . . . . . 1 of 17th September, 1900 91 of 1st January, 1901 92 prohibition by . . . . . . . . . . . . 22 Prohibition- acquiescence to jurisdiction by party seeking . . 37 against officer of Commonwealth . . . . . . 65 by proclamation . . . . . . . . . . 22 implied 25, 49 power of High Court as to, to Commonwealth Court of Conciliation and Arbitration . . . . 41 quoad . . . . . . . . . . . . . . 37 rule of implied . . . . . . . . . . . . 44 Promissory notes 29 Property — acquisition of, by Commonwealth . . . . . . 34 of State, transfer of . . . . . . . . . . 73 used or used exclusively in connection with transferred department . . . . . . 73 Prorogation of Parliament 5 Public acts, recognition of, of States . . . . . . 87 Public debts of States, taking over of . . 81 Public Service — abolition of office, gratuity on . . . . . . 71 exclusive power to make laws for transferred depart- ments of . . . . . . . . . . . . 46 permanent and temporary employment under Acts of 1884 and 1895, distinction between . . 57 transfer of department of State, carries with it trans- fer of officers . . . . . . . . . . 71 Qualifications — of electors of members of House of Representatives . . 13 of members . . . . . . . . . . . . 14 of senator . . . . . . . . . . . . 10 Quarantine 28 transferred department . . . . . . . . 55 Queen in Council, appeal to High Court where there formerly existed appeal to . ■ . . . . 59, 60 IKUEX. 117 PAGE Quo Warranto, where injunction proper remedy as op- posed to . . . . . . . . . . . . 21 Quorum — of House of Representatives . . . . . . . . 15 of Senate . . . . . . . . . . . . 10 Quota to determine number of members of House of Rep- resentatives . . . . . . . . . . ..11 Races disqualified from voting, provision as to . . . . 11 Railway — acquisition of State, by Commonwealth . . . . 36 construction in State, with consent of State . . . . 36 control of, for naval and miUtary purposes . . . . 36 preferences by State, forbidding of certain . . . . 81 State and Commonwealth power to make laws with respect to . . . . . . . . . . . . 80 State, is State instrumentality within D'Emden v. PeMer 19 Receipts, stamp duty on . . . . . . 47 Records, recognition of, of States . . . . . . . . 32 Registration of Association 37 Remission of fines 97 Repeai, Federal Council Act 3 Representatives in first Parhament . . 12 Resident — bona fide and domiciled in . . . . . . . . 87 meaning of . . . . . . . . . . . . 86 of different States, matters between . . . . . . 65 Resignation — of member . . . . . . . . . . . . 15 of Senator . . . . . . . . . . . . 10 Retiring ailowance of transferred officer . . 56 Revenue bills 50 Rotation of Senators . . 7 Rules, House may make, as to privileges and order, and conduct of its business . . . . . . . . 19 Salaries of Ministers of State . . . . . . . . 55 Salary of Commonwealth officer, income tax on . . . . 49 Schedule 91 Seat of Government 89 exclusive power to make laws as to . . . . . . 46 118 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. PAGE Senate — casual vacancy in . . . . . . . . . . 9 constitution of . . . . . . . . . . . . 5 election of, qualification of electors . . . . . . 6 equal powers of, as to legislation, except as limited by s. 53 60 powers of, as to legislation . . . . . . . . 50 increase or diminution of members in . . . . . . 9 President of, election of . . . . . . . . 10 privileges of . . . . . . . . . . . . 18 quorum .... . . . . . . . . . . 10 vacancy in . . . . . . . . . . . . 8 voting in . . . . . . . . . . . . 11 Senator- election of, after vacancy by declaration of Court of Disputed Returns . . . . . . . . 9 failure to choose . . . . . . . . . . 7 resigaafcion of . . . . . . . . . . . . 10 Senators — method of election of . . . . . . . . . . 6 refusal of Governor to issue writ for election oi . . 8 qualifioafions of . . . . . . . . . . 10 rotation of . . . - . . . . . . . 7 successor cjhosen by State Parliament . . . . 8 vacancy by absence . . . . . . . . . . Iq in place of . . . . . . . . . . . . 8 of office of, notification of . . . . . . 10 Service and Execution of Process 31 Sessions of Parliament . . 6 Sliipping, Commonwealth power to make laws with respect to 80 Ships- operation of constitution and laws on what British . . 2 whose first port of clearance and whose port of destination are in the Commonwealth . . 2 Short title i Silver, bounty on mining for . . . . . . . . 75 Solicitor — misconduct, onus of proof . . . . . . . . 62 struck off roll, jurisdiction of High Court to entertain appeal from order of Supreme Court re-admit- ting to practice . . . . . . . . . . 62 PAGE Sovran Statute, definition xx delegated powers under . . . . . . . . . . xxx Speaker — absence of . . . . . . . . . . . . 15 election of . . . . . . . . . . . . 16 Special leave — to appeal . . . . . . . . . . . . 58 to High Court, not> granted where appeal to Supreme Court . . . . . . . . 61 Special reasons for granting certificate under s. 74 63, 64 Special tribunal, appeal from, whose judgment State Par- liament declared was to be final and conclusive . . 61 Stamp duty— on receipts . . . . . . . . . . . . 47 on transfer of property not chargeable against Com- monwealth . . . . . . . . . . 35 State- Arbitration Court, award of . . . . . . . . 38 banking . . . . . . . . . . . . . . 28 coining of money by, forbidden . . . . . . 86 constitution of, alteration of . . . . . . . . 82 Court, denial of jurisdiction by, remedy where . . 69 whether appellate jurisdiction conferred on . . 69 discrimination between, and State or between parts of States as regards taxation, forbidden . . 24 Government, goods imported by . . . . . . 49 Governments, how far subject to Commonwealth legislation . . . . . . . . . . 49 Governor of, provisions relating to . . . . . . 85 importation of goods by Government of . . . . 83 inconsistency of Commonwealth and, law . . . . 83 instrumentaUties, attempted Commonwealth inter- ference with . . . . . . . . . . 19 insurance beyond limits of State concerned . . . . 28 law-making powers, concurrent . . . . xxvi-xxviii delegated . . . . . . . . . . . . xxx plenary . . . . . . . . . . . . xxii residuary . . . . . . . . . . . . xxix laws, application of, to election of members of House of Representatives . . . . . . ..13 application of, to election of Senators . . 7 120 COMMOKWEALtH op AUSTRALIA CONSTITUTION ACT. PAGE State — Continued. award inconsistent with . . . . . . . . 40 inconsistency of, with State constitution . . 82 interference with . . . . . . . . . . 38 public acts and records, recognition of . . . . 87 saving of . . . . . . . . . . . . 83 levy of charges for inspection laws by . . . . 84 matters referred to Parliament of Commonwealth by Parliament of, or States . . . . . . 43 reserved to, where exception permitted. . . . 20 military forces not to be raised by, without Com- monwealth consent . . . . . . . . 84 mode of determining number of members of House of Representatives for each . . . . . . 11 naval forces not to be raised by, without Common- wealth consent . . . . . . . . . . 84 Parliament, saving of power of . . . . . . 83 Senator selected by . . . . . . . . 8 power of, to control Commonwealth agencies . . 47 proceedings against . . . . . . . . . . 69 protection of, against invasion and violence . . . . 87 railway, acquisition of . . . . . . . . . . 36 railways. Commonwealth Conciliation and Arbitra- tion Act, ultra vires as to . . . . . . 20 Commonwealth power to make laws with regard to . . . . . . . . . . 80 control of . . . . . . . . . . . . 36 preferences and discrimination by . . . . 81 saving of certain rates . . . . . . . . 81 resident of . . . . . . . . . . . . 86 right of, to waters of rivers . . . . . . . . 80 taxation of property of, by Commonwealth . . . . 84 traiisfer of property of . . . . . . . . 73 States — admission of new . . . . . . . . . . 88 alteration of limits of . . . . . . . . . . 88 appeal to Privy Council from High Court, as to limits inter se of constitutional powers of, where . . 42 constitutions of . . . . . . . . . . . . 82 dispute between different . . . . . . . . 65 residents of different . . . . 65 INDEX. 121 PAGE States — Continued. financial assistance to . . interference with internal trade and commerce of matter claimed under laws of different new, formation of original jurisdiction of High Court in matters be- tween, or residents of different . payment to, before uniform duties . for five years after uniform tariffs recognition of laws, public acts, and records and judicial proceedings of . . rights of electors of service and execution of process and judgments of Courts of . . surrender of territory by taking over public debts of . . Statistics Statute General, definition Statutes — see Table of Statutes, supra Superannuation allowance Supreme Court — appeal from .. .. .. .. .. 61, 61 to Privy Council . . . . . . . . 49 High Court may directly order an officer of Supreme Court to obey a judgment of High Court of any State, interpretation . . . . of State, appeal from . . postponement of proceedings by relation of High Court to Surplus reveune — distribution of . . what is . . " Tax, ' ' Customs duties not, on goods Tax bills Taxation — Act dealing with matters other than taxation imposing more than one subject of . . bills but not so as to discriminate between States and parts of States . ■ • • • • • • . . 24 122 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. Taxation — Continued. of Commonwealth property by State of income of Commonwealth officer . . 44, of State property by Commonwealth power of . . Telegraphic services . . Telegraplis, transferred departnient Telepliones, transferred department Telephonic services Territories, government of . . Territory, surrender by State of . . Test— of inconsistency of award with State law of invalidity The Parliament, legislative power vested in The States, definition Title, short Trade within Commonwealth to be free . . Trade and commerce includes navigation, shipping and State railways preference as to State railways, prohibition of regulation of, by Interstate Commission . . within State, power of Commonwealth does not ex tend to Clause s. 51 (1) not enlarged, but merely explained by s. 98 Trade marks interpretation of, in s. 51 (xviii.) workers' . . . . . . . . Trade Marks Act, 1905, Part VII., ultra mres Trading corporations Transfer — by vendor to Commonwealth of property of State Transferred departments — beacons, buoys. Customs, excise, Hghthouses, hght- ships, military defence, naval defence, ports, quarantine, telegraphs, telephones current obhgations of, to be assumed by Common- wealth . . . . . . . . .... exclusive power to make laws for 84 48 84 51 27 65 55 27 88 84 40 41 4 3 1 75 19 80 81 80 20 23 29 20 20 20 30 35 73 55 '73 46 INDEX. 12» PAGE 16 Treason, disqualification consequent on attainder of Treaty, jurisdiction of High Court as to matters arising under . . Trial— by jury . . 30, 69 place of . . Ultra vires Seamen's Compensation Act, 1909 No. 29, s. 4, as to purported regulation of merely inter-State trade Trade Marks Act, 1905, Part VII. Uniformity of bounties Vacancy — casual, in Senate in Senate, after election declared void of office of Senator by absence to notification of . . of place of member by absence on disqualification writs for . . Validity— of award . . of Commonwealth legislation . . . . 25, of legislation Verdict- appeal to judgment founded on impeaching Violence, domestic protection of State against Voting— in House of Representatives in Senate on joint sitting . . W ages — legislative authority of Commonwealth Parliament as to . . of apprentices Wages Board, determination of . . Warrant endorsed, statement of offence in Warships Water conservation, right of State or resident of State, to reasonable use of rivers for . . . . . . 80 65 70 44 23 20 27 9 8 10 10 15 17 14 40 30, 51 37 61 61 87 15 11 52 19 40 40 33 2 38, 124 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT. PAGE Waters of rivers, right of State or residents theuin to . . 80 Weights 29 Western Australia — Customs duties of . . . . . . . . . . 78 special provision as to entry into Commonwealth . . 2 tariff prescribing higher rates on Australian-origin goods than Federal Tariff, procedure where . . 76 Wire netting case 49 Workers' Trade Mar Its 20 who are proper parties to declaration as to invalidity of 20 Writs— for general election . . . . . . . . . . 14 for vacancies . . . . . . . . . . . 14