^'"MSiiii miiffl!f.ll ,„?onsHtutional law Charlei |||| I i| 1 1 1 1| || 11 ' Law Publishers, 3 1924 024 295 101 l^CT J- j-j.^.^-- THE CONSTITUTION OF AUSTRALIA By Hou. I. A. ISAACS, Q.C. (Ex- Attorney-General of Victoria), and J. E. MACKEY, Esq., Barrister-at-Law. A full Analytical and Comparative Examination of the Commonwealth Act, Copiously lUultraterl by leading Cases of the United States and Canada. Dealing thoroughly with among others, the following subjects, and showing their relation to the States and the Commonwealth : — Sovereignty, Relation of the Commonwealth to the Empire, to the States, and to Foreign Nations (Treaties &o. ) Federal Parliament. Execntiv-e— iXnt^iniaT" , /„j-.« ^ , ,ai. ■ . " -'— — ' _— CoRTNELL University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY .UNDER THE WILL OF MR. BENNO LOEWY CHARLES F. MAXWELL (C. Partridge & Co.), LAW BOOKSELLERS AND PUBLISHERS. Libraries Valued (or Probates and Partnerships. 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Fielding v. Thomas Fletcher v. Peek... 7 Quebec L.R., p. 380 143 U.S. 649-693 ... L.R. (1896) A.C. 600 6 Cranch. 87, 128 ... 311 43 30 34 G Genesse Chief (The) v. Gibbons v. Ogden Gloucester Ferry Coy. sylvania Governor v. Porter Green c. Neal's Lessee Fitzhugh )'. Penn- 12How. 443 9 Wheat. 1 144 U.S. 196, 203 ... 5 Humph. 165 6 Pet. 29 105 84,85,122,123,130,133 84, 150 40 164 H Hai-greaves v. Diddams Height V. Keokuk Henderson c. Mayor of New York Hodge V. The Queen Holyoke Water Power Coy. v. Connecticut River Coy. Howard v. Ingersoll Huse I'. Glover James (The) Gray r. The Ship John Frazer ... K King (,'. Montague Leask D. Scott Brothers Legal Tender Cases Leisey v. Hardin Licence (The) Cases (Pierce v. New Hampshire) London Street Tramway Co. v. London County Council Lottawanna (The) Case M Magdalen Hospital v. and Others ]\Iarbury v. Madison Knotts L.R. lOQ.P,. 582 ... 4 Iowa 199 92 U.S. 259, 272 ... L.R. A.C. vol. 9, p. 117 22Blatch. 131 15 How. U.S. 415 ... 119 U.S. 543 21 How. 184 4B. &C. 96... L.R. 2Q.B.D. 376 .. 12 Wall. p. 457 135 U.S. 100 5 How. 504 L.R. [1898] A.C. 375 21 Wall. 557, 558 L.R. 4 A.C. 324 1 Cranch. 137 104 117 84 42, 44, 47, 302 111 117 107 150 104 350 221 124, 127, 139, 141, 142 124, 125, 126, 128, 130 17 106 354 182 TABLE OF CASES CITED. Name. Reference. Page. Mayor, &c. v. Horn 26 Md. 294 40 McClung V. SOliman 6 Wheat. 598 178 McCready I'. Virginia ... 94 U.S. 391 374 McCuUoch t!. Maryland 4 Wheat. H16 22, 23, 222 Meeker v. Van Rensselaer 15 Wend. 397 148 Minnesota i;. Barber 136 U.S. 313 128, 136 Mobile V. Kimball 102 U.S. 691,697 ... 84, 85, 127, 146 Montello (The) 20 Wall. 430, 441 ... 107, 109 Morgan Steainsbip Co. v. Louis- iana Board of Health 118 U.S. 455 131, 133 Mnsgrave v. Pulido 5 Appl. Cases 102 ... 63 N Nashville &c. Railway Co. v. Alabama 128 U.S. 96 149 National Bank u Yankton 101 U.S. 129 44 Neagle, In re 135 U.S. 69 ... 196, 202 New York t). Milu 11 Pet. 102 124 Orr-Ewing v. Colquhoun L.R. 2 A.C. 839 ... 104 P Passenger (The) Case.? 7 How. 283 84, 85, 126, 144 Pennington v. Cardale ... 3H. &N. 656 354 People V. Board of Supervisors 16 N.Y. 424 40 People V. Supervisors of Orange 17 N.Y. 235-41 34 Petrel (The) L.R.P.D. 1893, p. 323 345 Picard v. Pullman Southern Carr Co 117 U.S. 34 85 Plating Co. v. Farquliarson ... L.R. Ch. Div. vol. 17 p. 49 235 Powell V. Apollo Caudle Co. . . . L.R. A.C vol. 10, p. 282. . 42, 43, 302 Priestlj' V. Powler 3 M. & W. 1 345 Pugh V. The London, Brighton and South Coast Ry. Co. L.R. 1896 Q.B.D. vol. Q 2, p. 284 351 Queen (The) u. Burah L.R. A.C. vol. 3, p. R 889 42, 43, 302 Rahrer, In re 140 U.S. 545 141, 143 Railroad Co. v. Georgia 99 U.S. .359 164 Railroad Co. v. Husen ... 95 U.S. 465, 469 84, 85 Reg. V. Mount 4 A.J.B. 38-42 302 Reg V. VVason ... 17 O.A.R. p. 221 ... 34 Rhode Island v. Massachusetts 12 Pet. 657 ... 110 Rhodes u. Iowa ... 170 U.S. 42 140 Robins v. Shelby County Taxing District 120 U.S. 489 84 Rodger v. The Comptoir d'Es- compt6 de Paris ... L.R. 2 P.O. .393 349, 350 TABLE OF CASES CITED. Name. Reference. Page. Rutz V. City of St. Louis 7Fed. Rep. 428 ... 112, 113 s Saltpetre Case (The) ... 12 Coke 12 147 Sands v. Manistee River Imp. Co .. 123 U.S. 288 107 Scollenberg v. Pennsylvania 171 U.S. 1 80 Sherlock v. Ailing 93 U.S. 99 150 Slade V. Slade 58 Me. 157 99 Slattery v. Naylor L.R. A.C. 13, p. 446 286 Slaughter House Cases 16 Wall. 36 118, 380 Smith V. Alabama 124 U.S. 465 127, 149, 195, 203 Smith V. Turner 7 How. 283 146 St. Anthony Falls Water Power Co. V. Board &c. of St. Paul 168 U.S. 349 114 State V. City of Eau Claire 40 Wis. 533 114 State Freight Tax Cases 15 Wall. 232-279 ... 84-85 Steamship Co. v. Port Wardens 6 Wall. 31 150 Steel V. Dixon L.R. 17 Ch. Div. 825 342 T Thorpe v. Rutland &o. R.R. ... 27 Vt. 140 119 U United States v. Dewitt 9 Wall. 41 144 United States v. Hudson 7 Cranoh. 32 195 United States v. Louisville and Portland Canal Co 1 Flip. 260 108 United States v. Oregon Rail- way and Navigation Co. 16 Fed. Rep. 524 ... 108 United States t). Reynolds 98 U.S. 145 44 United States v. Rio Grande Dam Co 51 Pae. Rep. 674 ... 114, 115 United States v. Villato 2 Dallas 370 99 United States v. Worrall V Valin V. Langlois 2 Dallas 384 195 L.R. 5 A.C, p. 115... 33 Veazie 1). Moor 14 How. 568 . 107 Victorian Railway Commission- ers V. Coultas and Wife L.R. A.C. vol. 13, p. 222 350 Vincennes University v. Indiana 14 How. 268 44 Voight V. Wright 141 U.S. 62 80 w Wabash &;c. Railway Co. v. Illinois 118U.S, 657 84, 85 Walling «. Michigan 116 U.S. 446, 455 ... 85 Ward V. Maryland 12 Wall. 418 79, 84 TABLE OF CASES CITED. Name. Waring 1). Waring Wheaton v. Peters • Walton V. Missouri Wiggins Eerry Co. v. East St. Louis Wilson V. Blackbird Creek Co. Wilson V. Merry ... Wilkinson v. Downton ... Reference. Page. 6 Moore's B.C. 341 354 8 Pet. 591 195 91 U.S. 275 79, 85, 127 107 U.S. 365 107 2 Pet. 245 .. 123 L.R. 1 So. Ap. Cases 326 341 L.R. 1897 Q.B.U. vol. 2. p. 57 .S5l ERRATA. Page 107, note (c), for 123 N.S., read 123 U.S. 128, last line but one, for US U.S., read 136 U.S. 146, note (b), for ino U.S., read 102 U.S. 207, note (a), supply vol. 9. 345,. note (c), supply p. 266. 354, note (6), for S.H. & N. 656, read 3 H. & N. 656. (These errors are corrected in the Table of Cases, pp. X[.-XV.) 1, INTRODUCTION. Before the establishment of the Commonwealth of ^^efore the establishment of Australia there was not any compact body of constitu- we^aSn?""' tional law which was uniformly authoritative in all the Sf^Situtionai Australian colonies, excepting that portion of the tormiy in force in all the colonies common law of England which limited the extent and except that ■^-^^ ^ portion of the regulated the exercise of the executive powers of the X'ch'ii'mrtld Crown and its servants, and which was applicable to reguiated'the** 1.1. , m, . . 1 ' T p exercise of the colonial Circumstances, ihe principles and usages or executive powers of the constitutional and parliamentary government which crown and its ^ . servants, and had been evolved in the course of the establishment of a f^ applicable to colonial government of that type in England had been adopted circumstances. , in the several colonies, but the adoption of them in each colony had taken place independently of the course fol- lowed in regard to them in the other colonies. In each of the colonies a bi-cameral legislature had been established, either by an Act of the Imperial Parliament or by colonial legislation which had received the assent of the Crown, and in each case the Act which established the bi-cameral legislation was called the Constitution of the colony. Each of these Constitutions contained many provisions that were substantially identical with 2 INTRODUCTION. provisions that were contained in each of the other Constitutions, but they did not collectively introduce into Australia any legal relations and consequences wrhich substantially distinguished the constitutional law of the several colonies from the constitutional law of those other portions of the British Empire in which parliamentary government had been established. In short,- the constitutional law of the Australian colonies prior to the establishment of the Common- wealth was the constitutional law of England so far as it was applicable to colonial communities with such modifications and additions as the imperial or colonial legislation which referred to particular colonies had introduced into it. But the Constitution of the Commonwealth has introduced a totally new and compact body of constitutional law into Federated Australia. A large part of it has been taken from the Constitution of the United States of America and from the legislation of the American Congress ; some of it has been copied from the Constitution of the Dominion of Canada ; and other portions of it are purely Aus- tralian in their origin. The time has not yet arrived for a comprehensive and elaborate commentary upon it, and all that will be attempted in this volume will be a consideration of some of its fundamental and more • prominent features. Constitutional The Constitutional law of a country may be defined law defined. _ _ J j as that portion of its fundamental law which prescribes or determines the structural character of the various governmental organs included in its total political organisation, their relations inter se, and the particular powers and functions of each of them. The Constitu- tion of the Commonwealth of Australia has embraced the previous political organisations of the six States INTRODUCTION. 3 which constitute the Commonwealth in one compre- hensive political organisation of that composite kind which is known and described as " federal." The federal form of political orj^^anisation exists whenever a number of separately orga.nised communities are embraced in one comprehensive community and the whole field of legislative and executive authority is definitely divided between the legislative and the execu- tive organs of the larger and comprehensive com- munity on the one hand, and the legislative and the executive organs of each of the component communi- ties on the other. In the more perfect examples of a federal organisation the judicial authoritj' is also divided between the judicial organs of the compre- hensive community and the judiciary of the component communities. But a federal organisation may exist in which the same courts of judicature exercise the judicial powers of the federal government and of the component communities, as is substantially the fact in the case of the Dominion of Canada. Under the Constitution of the Commonwealth of The division of the field of Australia, the legislative, the executive and the judicial f°JiXi'i^^"*°'^ powers exercisable within the territorial limits ^^o',;^^'J^4eIith of the Commonwealth are all definitely divided necessitate^sT .. . ijT-T'i litnitation of the between the legislative, the executive and the judicial powers of their ° respective organs of the Commonwealth, and the legislative, the ^°™™"'™'*^ executive and the judicial organs of each of the com- ponent States of the Commonwealth. This division of the field of governmental authority implies and neces- sitates a limited area of jurisdiction within which the governmental organs of the Commonwealth can exercise their authority and a correspondingly limited jurisdic- tion for the governmental organs of each of the separate States, These limitations are imposed by the Con- INTRODUCTION. stitution of the Commonwealth, and they are therefore legal limitations in the strictest sense of the word, because the Constitution supplies the fundamental and organic laws of the Commonwealth. Any doubt or dispute as to the extent of the jurisdiction of the Parliament of the Commonwealth or of the jurisdiction of the Parliament of any State of the Commonwealth is a matter of constitutional law to be determined by the Judiciary of the Commonwealth or by the Judiciary of a State whenever the intervention of either of them may be invoked, but subject in the case of the Judiciary of a State to an appeal to the High Court of the Com- monwealth. This dependence upon the Judiciary for the restraint and practical abrogation of legislation by the Federal Parliament or by the Parliament of a State in excess of the limitations imposed upon its powers by the Constitution is inseparable from the federal form of political organisation if its essential features are to be preserved from gradual obliteration by successive encroachments on the part of the legislative depart- ment of the Federal Government upon the legislative domain of the States, or by encroachments on the part of legislative departments of the several governments of the States upon the domain of the federal legislative power. Hence it has been pertinently and forcibly observed by Professor Dicey that federalism means legalism and the supremacy of the Judiciary in the Constitution (a). A federal constitution will always include a dis- tinctive body of constitutional law, under which numerous questions that never could arise under a unitary constitution will from time to time be raised (a) Law of the Constitution, 5th ed., p. 160. INTRODUCTION. in reference to the powers and functions of the differ- ent governmental organs exercising governmental powers within the territory over which the federal constitution extends. But in the case of the Con- stitution of the Commonwealth of Australia, the re- production of portions of the historical and unwritten Constitution of the mother country in definite terms imports into Australian constitutional law under the Commonwealth many legal relations and consequences which have their origin in the English common law. The constitutional law of the mother country will therefore continue to be a guide and a fountain of knowledge and authority on man.y matters included in the constitutional law of Australia, but in regard to many other portions of it the historic decisions of the Supreme Court of the United States which were delivered by Chief Justice Marshall and his associates during the first half century of the Republic cannot fail to be follow^ed in Australia wherever the language to be interpreted is substantially the same as that to which the irresistible reasoning of those decisions was applied. In the decisions of the Judicial Committee of the Privy Council upon many of the provisions of the Canadian Constitution, and in the decisions of the same tribunal in a number of Australian and Indian appeals, the student of Australian constitutional law will find a large amount of authoritative material for his instruction ; and a storehouse of legal learning upon the fundamental principles and doctrines of the English common law relating to the prerogatives of the Crown and their applicability to colonial circum- stances is to be found in the opinions of the law officers of the Crown in England and in the colonies which have been made available for general use by INTRODUCTION. publication. At a future day the judgments of the High Court of Australia will doubtless provide exposi- tions of all the important provisions of the Constitu- tion of the Commonwealth which are specially referable to Australian circumstances and to the new problems and questions which will arise out of them. ofgovernment™ The federal form of government under which the written* ^^'^ powers of the several governmental organs are subject to definite and prescribed limitations necessarily in- volves a record of the limitations, or, in other words, a written constitution. But under every written con- stitution which endures for any long period of time, and provides sufficient channels for the political activity of a progressive nation, there will inevitably grow up a supplementary and unwritten constitution, consisting of usages which are evolved in the application of the written constitution to the political facts of the nation's life and history. These usages do not form part of the constitutional law of the country in the sense of law which is recognised by the courts and enforced in accordance with their declaration of it, excepting such of them as may affect or establish definite legal relations, and it is extremely doubtful if any such usages as those lastly mentioned can be evolved in a country where a written constitution is both the source and the measure of the legal power of all the governmental organs in it. The evolution of such usages may be said to have substantially ceased in England, and it does not seem probable that any such usages will become incorporated in the constitutional law of Australia. t^'^e's^H^lraf^ The federal form of government permits numerous government. variations in the division of the whole area of govern- mental activity between the governmental organs of INTRODUCTION. the comprehensive political community which is consti- tuted by the federation of the separate communities embraced in it and the governmental organs of the several component communities. But there are two fundamentally distinctive patterns of federalism to one or the other of which it seems that it is practically inevitable that every federal nation or community must substantially conform in the distribution of political authority. The distinctive feature of the first pattern is that it allots a limited and enumerated number of legislative, executive and judicial powers to the governmental organs of the larger and compre- hensive community, and leaves the component com- munities in possession of all the residue of political power and authority exercisable through the medium of law. The distinctive feature of the second pattern of federalism is that it allots a limited and enumerated number of governmental powers to the several com- ponent communities, and vests the whole residue of political power and authority in the governmental organs of the larger and comprehensive community. The Dominion of Canada is an example of federalism of the second pattern. The United States of America, the Swiss Eepublic, and the Commonwealth of Aus- tralia are all examples of federalism of the first pattern. The Constitution of each of these three federal communities contains also the following three important features, which may be properly alleged to be fundamental guarantees of the preservation of the distinctive pattern of federalism which they have adopted, viz. : — (1) The equal representation of all original States in the Senate ; (2) The prohibition of any reduction or increase 8 INTRODUCTION. in the area of any State without the consent of its Parliament ; (3) The requirement of the consent of a majority of States, as well as the consent of a majority of the total number of votes polled in all the States, to any amendment of the Constitu- tion. p?obi™ of' f ' The framers of the Constitution of the United States form'ofSrai of America were the first builders of a federal govern- the framers of^ mcnt who wcre compcUcd to deliberately consider the the Constitution ,.,.,. „.,,. of the United question of the necessity or desirability of including these important provisions in the political organisation of a federal nation. The problem which they had to solve was the union of a number of separately organ- ised communities into a composite community, in which each component community should preserve and should be guaranteed in the preservation of its separate political existence, for the purpose of pro- tecting the lives and property and enforcing the contracts of its members, and in which the members of every component community should be simul- taneously subject to the jurisdiction of one govern- ment, which should regulate and control all their intercourse with other nations and all the intercourse of the members of each of the component communities with the members of each of the other component communities. The problem was solved by providing for the existence of two distinct citizenships, viz., a citizenship of each component community and a citizen- ship of the composite community, and defining their mutual boundaries, and providing also for the protec- tion of the mutual boundaries of the two citizenships by giving to a majority of the component communities INTRODUCTION. as such, and to a majority of the total population of the composite community, concurrent powers of veto upon any proposed legislation, or any proposed amendment of the constitution. The same problem presented itself to the members of the Convention which framed the Constitution of the Commonwealth of Australia, and they arrived at the same solution of it, because they desired to make the fundamental features of the Constitution of the Commonwealth of Australia as permanent as the fundamental features of the Con- stitution of the United States have proved to be. A federation without concurrent powers of veto vested in a majority of the component communities, and in a majority of the whole population of the composite com- munity respectively, will retain its original character only so long as the uncounterpoised majority of com- ponent communities, or of the total population of. the composite community, is willing to leave it unaltered. The verbal limitation of the respective boundaries of the separate jurisdictions of the States and the Nation in a federal constitution is not sufficient to prevent encroach- ments by the federal legislature upon a sphere of action impliedly reserved to the States in a form that will pre- clude the interference of the judiciary to restrain them. In such cases the only remedy will be a political one; and the equal representation of each State in the Senate is the most reliable hope that the remedy will be found and applied in the subsequent repeal of the objectionable legislation. But a more effective and a satisfactory result of the equal representation of each State in the Senate will be the defeat of attempts to make such encroachments as those above mentioned (a). (a) The provision of the Constitution of the United States of America which requires an amendment of the Constitution to bo 10 INTRODUCTION. The equal Under a federal constitution, in which the repre- representation °* the States in gentation of the entire composite community in the House of Representatives, and the representation of the States in the Senate, are both proportional to population, a majority of the total population of the composite community can at all times obtain what- ever legislation it desires upon any subject within the powers of the federal parliament, irrespective of the number of States in which the majority might be distributed, or of any circumstances connected with its temporary composition whicli indicated detriment to the Commonwealth in its demands. But truly repre- sentative and constitutional government, although in its most perfect form it will provide machinery to enable every effective member of the community to take part in the composition of the legislative authority, is never an equivalent of the exclusive rule of ja simple numer- ical majority of the voters, and its legislative machinery is not an expedient for avoiding the necessity of sub- mitting every proposed law directly to the decision of the whole people. It has become a trite observation that ratified by the legislatures or conventions of three-fourths of the States was clearly intended to secure a concurrence of a majority of the States and a majority of the total population of the union. At the present time a majority of the population is contained in a minority of the States, and it is conceivable that at some future time the total population might be distributed among the States in such proportions that an amendment of the Constitution might be ratified by three-fourths of the States vi^hieh contained a minority of the total population of the union. This contingency would be contrary to the expectations of the framers of the Constitution ; but a preliminary proposal of an amendment by two-thirds of the members of both Houses of Congress would necessarily be made by the representatives of a majority of the total population in the House of Representatives ; and the same result would be secured by the alternative method of electing a convention to propose amendments. INTRODUCTION. 11 civil society is not a simple collection of human animals who are individually using all their energies and capacities to satisfy their corporal necessities and appe- tites, but is a complex organisation of human beings who possess intellectual and moral, as well as physical, faculties, and whose relations to the social organisation of which they are members makes them partakers in a collective and ultra-corporal life in which a variety of forces and interests are embraced. But the body social, like the body of the single human animal, may have lodged within it from time to time unhealthy and disintegrating forces which the machinery of govern^ ment ought, as far as practicable, to exclude from any participation in the control or direction of legislation. To secure this result it is necessary that legislation should be produced by the concurrence of a plurality of authorities, in which the reflective judgment, and all the social forces that compose the healthy and progres- sive life of the community, shall find distinct expression. The excess of the simple numerical majority above the numerical minority may at any time represent the un- healthy and disintegrating forces of the community ; and legislation obtained by their assistance must always be doubtful in its character. The concurrence of a plurality of authorities in constitutional 1 . . n , . government. legislation is a necessary condition of truly constitu- tional government in any community, whether it is federal or unitary. If the whole legislative power is vested in a single authority it is a form of absolutism, whether the authority be a single man, or the majority of a single assembly. But if provision is made in the composition of the legislative authority for securing the concurrence of distinct majorities representing distinct social forces and interests, the government is 12 INTRODUCTION. constitutional. In a federal commonwealth, many of the numerical majorities of diflferent portions of some of its component States will frequently represent forces and interests which will be identical in character with the forces and interests represented by numerical majorities in various portions of other States. But the collective and corporate life of each State will embrace the influences flowing from historical and geographical and other conditions peculiar to the State, and which make its collective and corporate life a distinct and separate force in the national life of the commonwealth. As such it ought to find a voice in the national legislature. But the extent and value of its contribution to the national life of a federal common- wealth cannot be measured by the number of the population of a State. Nor is the amount and value of the property possessed in a State a true measure of the importance of its separate corporate existence to the commonwealth; and the only logical alternative to the equal representation of each State in the Senate is a refusal to recognise the separate existence of any State in the composition of the federal legislature, in which case the government ceases to be federal in the truest sense of the word, and it is transformed into a government which only differs from the government of a perfectly unified commonwealth in the fact that the sphere of its legislative power is limited. But it is not the limitation of the sphere wherein it can exercise legislative authority, which is the essential feature of a truly federal government. Its essential and distinctive feature is the preservation of the separate existence and corporate life of each of the component States of the commonwealth, concurrently with the enforcement of all federal laws uniformly in every State as effec- INTRODUCTION. 13 tually and as unrestrictedly as if the federal government alone possessed legislative and executive power within the territory of each State. Professor Freeman has told us that the distinguish- Advantagesof » the federal form ing advantage of the federal form of government is the »« sovernment. multiplication of adequate arenas and conditions for the political -education of the citizens of a common country, and for implanting in them an active patriot- ism. 'But the only solid security for the continuance of this advantage is an assiduous preservation of the separate corporate life of each component State in the Federation ; and if the constitution of any federal commonwealth does not provide a sufficient protection of the several States against any attempt by a numerical majority of the total population of the composite community to reduce the area of separate political existence which the constitution reserves to each State, it fails to supply an adequate guarantee that the distinguishing advantage of the federal form of government will be a permanent possession of the people who live under it. [14] 2. THE INTERPRETATION OP A WRITTEN CONSTITUTION. tionof th»'"' '^^^ Constitution of the Commonwealth of Australia o°A™trauris'' ^^ Contained in a written document which is an Act imperia" " of the Imperial Parliament of the United Kingdom of Great Britain and Ireland, and the ultimate authority for all the legislation enacted by the Parliament of the Commonwealth, and for. every official act performed by the Governor-General, must be found in it. It con- fers upon the Parliament of the Commonwealth plenary legislative power within any territory in which that Parliament alone shall have legislative jurisdiction, but it confers upon the same Parliament within the terri- torial limits of the several States of the Commonwealth a legislative power which is distinctly limited hy a specific enumeration of the matters in respect of which it can be exercised. The Constitution of each of the several States of the Commonwealth is also con- tained in a written document which is an Act of the Imperial Parliament, or an Act of the local Parliament which has been enacted in the exercise of specific power conferred by the Iiiiperial Parliament for that purpose, and which confers upon the Parliament of the State INTERPRETATION OF A WRITTEN CONSTITUTION. 15 plenary legislative power in general terms, but subject to specific restrictions in regard to a few enumerated matters. But the Constitution of the Commonwealth has removed from the Parliaments of the States a large part of the legislative power which they pre- viously possessed, and has transferred it to the Parliament of the Commonwealth. The Parliaments of the States have therefore ceased to possess a plenary general legislative power, but the restric- tions imposed upon them by the Constitution of the Commonwealth leave them in possession of an un- defined residuum of legislative jurisdiction under the general terms in which legislative authority was orig- inally conferred upon them. In the case of the Par- liament of the Commonwealth there is not anj"^ such residuum of legislative power vested in it with respect to the territory comprised within the boundaries of the States, and the question whether it has at any time exceeded the limits of its jurisdiction over the residents of the States will have to be determined by the directly affirmative or directly negative language of the Con- stitution in respect of the legislative powers of the Parliament. But the lanffuaece of the Constitution will be con- The languasre of & " the Constitution strued by the Courts of the Commonwealth in accord- ?„J;J^f'i*° ance with tlie fundamental principles and rules of *"*'"'P'''=''**'°"- political and legal hermeneutics, and it is inevitable that the Constitution will in this manner be supple- mented in the course of time by a body of judicial decisions, which may either extend or restrict the application of the language used in some of its pro- visions beyond or below the literal and primary mean- ings of the words employed. In every case in which the language used is grammatically or etymologically 16 INTERPRETATION OF A WRITTEN CONSTITUTION. Isolated decisions. Reversals of previous decisions by courts of final resort. capable of varying interpretations, the particular mean- ing to be given to it must be determined by the applicability of that meaning to the purposes indicated by the whole of the context. The numerous forms in which legislation may be shaped for the accomplishment of similar purposes will frequently enable the courts from time to time to diminish very largely the apparent authority of a previous decision which experience has proved to be based upon an interpretation of the Constitution which is not concordant with the proper scope of some of its provisions, or is inconsistent with the funda- mental character of the document. The previous decision will not necessarily be impugned by the subsequent decisions which may be based upon broader or stricter rules of construction, but it will be isolated and its authority will be restricted to the particular facts upon which it was founded. To reach this result it may be frequently necessary to magnify differences of form and method into differences of substance and purport, but the form and substance of legislation, and the method prescribed by a particular law to carry it into execution, are often so intimately related to the purport of the law, that the essential character and full effect of doubtful legislation may be frequently determined by the form of it and by the method by which the purport of it is to be effectuated. The question whether a court of final resort has a legal or a constitutional power to reverse any of its previous decisions has evoked conflicting expressions of •judicial opinion in England. The House of Lords appears to have finally acted upon the doctrine that a previous decision of the House is binding upon it INTERPRETATION OP A WRITTEN CONSTITUTION. 17 until reversed by legislation ; but the Judicial Com- mittee of the Privy Council has declined to adopt it (a). The Supreme Court of the United States of America has on several occasions directly reversed its previous decision in an exactly similar case, and the courts of final resort in the several States in America hold them- selves free to follow a like course. The Judicial Committee of the Privy Council and the Supreme Court of the United States occupy very analogous positions as appellate tribunals. Both are courts of final resort from judgments of the highest courts in a large number of separate territorial jurisdictions in which separate legislatures exercise independent legis- lative authority. The House of Lords, on the contrary, is the court of final resort from judgments of courts which exercise their functions within the limits of a single legislative jurisdiction, and it never determines a question affecting the validity of any legislation which proceeds from a source higher than such sub- ordinate governing authorities as County Councils and municipal and other corporations in the United Kingdom which have power to make by-laws and regulations. The High Court of Australia occupies a position similar to that of the Judicial Committee of the Privy Council, and to that of the Supreme Court of the United States. Jt is a court of final resort from judgments of the Supreme Courts of the several States of the Commonwealth, subject to the preroga- tive right of the Crown to grant special leave of appeal to the Queen in Council as provided in section 74 of the Constitution of the Commonwealth; and for this (a) See Pollock's First Book of Juriapriidenoe, Chap. VI., and the cases there cited ; also London Street Tramways Co. v. London County Council, L.R. [1898] A.O. 375. INTERPRETATION Or A WRITTEN CONSTITUTION. reason it ought not to preclude itself from reconsider- ing and reversing any decision which it may give upon an appeal from a judgment of the Supreme Court of any State, and which may involve the inter- pretation of any legislation of the State or the inter- pretation of any law of the Commonwealth ; nor ought it to preclude itself from declining to follow any decision of the Privy Council upon an appeal from a judgment of the Supreme Court of any State in a matter in which the interpretation of such legislation shall be involved. The aspect under which a case was presented to the court below, and the manner in which the court dealt with it, consequent upon the manner in which it was presented to the court, may frequently have a determining influence on the manner in which the appellate tribunal will deal with it ; and a different presentation of a similar case subsequently made to another court of final resort in another territory may reveal important features in the case which were not observed in the previous case. The different aspect in which the subsequent case is presented may have been disclosed by the different concatenation of facts in the midst of which the subsequent case arose in another jurisdiction. Unforeseen concatenations of facts fre- quently disclose unforeseen possibilities of interpreta- tion and application of legislation ; and an appellate tribunal which is invested with the high and momen- tous function of determining the limits of the authority of a number of separate legislatures having separate and independent territorial jurisdictions, in which different social, industrial and historical conditions may exist, would defeat the most momentous purpose of its creation if it precluded itself from reviewing a decision once given by it in circumstances which subsequent INTERPRETATION OF A WRITTEN CONSTITUTION. 19 events had proved to have excluded from observation important possibilities in the application of it. It has been repeatedly stated that the fundamental fuie'^o™n"e''Ve. rule for the interpretation of a written law is to follow '"''^^°°' the intention of the makers of it as they have disclosed it in the language in which they have declared the law. In cases in which the intention of the lawmakers was clearly limited to a specific purpose by the use of explicit and direct language which is not capable of application to any other purpose, there cannot be any difficulty in applying the rule. But where the inten- tion of the makers of the law was to provide a general rule of conduct to be observed in a multiplicity of circumstances, and the rule is necessarily expressed in general terms, the question of the intention of the lawmakers constantly resolves itself into an inquiry whether a particular act or a particular set of circum- stances is within the general ^language which they have used. In many cases it will be perfectly evident that the particular act or the particular set of circumstances in respect of which the question is to be determined could not have been in the contemplation of the makers of the law, and therefore it cannot be said, in the strictest sense of the words, that the makers of the law have expressed any intentions in regard to the matter. In every such case it becomes necessary to apply to the language of the law a method or process of interpretation which is usually described as construction, and which consists in examining the language of the law for the purpose of ascertaining whether it is such as we may reasonably believe the makers of the law would have regarded as sufficient to embrace the particular act or set of circumstances in question if it had |been foreseen by 20 INTERPRETATION OF A WRITTEN CONSTITUTION. them. If a critical examination of the language of the law leads to the conclusion that the makers of the law would not have felt it necessary to vary it in order to embrace the particular acts or circumstances in question if they had foreseen them, and that, on the other hand, they would have felt it necessary to vary the language of the law if they had wished to exclude them from its purview, then the language of the law is construed to embrace them. A pertinent example of the application of this principle of in- terpretation to the language of the Constitution of the United States is found in the judgment of the Supreme Court of the United States of America in the famous case of Dartmouth College v. Woodward (a), in which Marshall, C. J., said — " It is not enough to say that this particular case was not in the mind of the Con- vention when the article (b) was framed, nor of the American people when it was adopted. It is necessary to go further, and to say that had this particular case been suggested the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an ex- ception." The Federal This mcthod of interpreting a written constitution be construed as cannot be properly said to be characteristic of either a havinji^ reference tovarying liberal or a strict construction of the instrument. The circumstances and events. ^_^_ (a) 4 Wheaton, 518. (6) The provision against impairing the obligation of contracts. INTERPRETATION OP A WRITTEN CONSTITUTION. 21 basis of it is the recognition of the fact that the Con- stitution was not made to serve a temporary and restricted purpose, but was framed and adopted as a permanent and comprehensive code of law, by which the exercise of the governmental powers conferred by it should be regulated as long as the institutions which it created to exercise the powers should exist. But the social conditions and the political exigencies of the succeeding generations of every civilized and progressive community will inevitablj' produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and con- strued, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and pos- sessors of sovereign power, who maintain the Constitu- tion and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document. Every community of men is governed by present possessors of sovereignty and not by the commands of men who have ceased to exist. But so long as the present possessors of sov- ereignty convey their commands in the language of their predecessors, that language must be interpreted by the judiciary consistently with a proper use of it as an intelligible vehicle of the conceptions and inten- tions of the human mind, and consistently with the historical associations from which particular words and phrases derive the whole of their meaning in juxta- position with their context. If the present possessors 22 INTERPRETATION OF A WRITTEN CONSTITUTION. of sovereignty discover that the result so produced is contrary in particular cases to their will in regard to future cases of a like character, they will amend the language which they previously retained as the expres- sion of their will. If they do not amend it they must be presumed to accept the interpretation put upon it by the judiciary as the correct announcement of their present commands. Matters The particular provision of the Constitution of the incidental to the ■*■ *■ powers'vesfed Commonwealth of Australia in regard to the purport Pa'iiamenr^' of which a large amount of discussion may take place in the future is that which empowers the Parliament of the Commonwealth " to make lawi=V' -^^he peace, good order and government o^he Co™™0'^^|ryvealth with respect to HSv^b>^ k. -h ; " XXXIX. Matters incidental to the esecu.yn cf^fe ,f any power vested by this Constitutj^^j^-tlje Parliament or in either B[^|i«S§«Kereof, or in the Go vernmentof^theQ^mmon wealth, or in the FedergJ^JuoicsOTR^ or in any department or officer of the Commonwealth." The corresponding provision in the Constitution of the United States of America empowers Congress " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Govern- ment of the United States or in any department or officer thereof." The meaning of the words " necessary and proper" as they are used in this connection was made the subject of judicial decision in the Supreme Court of the United States in the year 1819 in the case of McGulloch V. Maryland {a), in which Marshall, C.J., (a) 4 Wheaton, 316. INTERPRETATION OF A WRITTEN CONSTITUTION. 23 delivered the unanimous opinion of the court, and in the course of his judgment he said — " We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitu- tion must allow to the national legislature that dis- cretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." The word " in- cidental " which is used in the Constitution of the Commonwealth of Australia to indicate the matters not expressly specified in respect of which the Parlia- ment of the Commonwealth may exercise its legislative power is in itself a wider and more comprehensive expression that the word " necessary " which is used in the Constitution of the United States ; but it seems impossible to suggest a wider interpretation for it as descriptive of the legislation that may be enacted within the scope of it than the interpretation which the Supreme Court of the United States has given to the word " necessary " in McOulloch v. Maryland and in subsequent decisions of the same Court in which the judgment in that case has been approved and followed. The determination of the question whether an Act The deteimi.ia- of the Parliament of the Commonwealth is a legitimate question " whether a exercise of the legislative power conferred upon it in f^gj^lntai to respect of matters incidental to the execution of any o^\ny^powe?is 24 INTERPRETATION OF A WRITTEN CONSTITUTION. substantially a other powGi' expresslv vested in it or in another de- decision upon a i ./ question of fact, partment or organ of the government of the Common- wealth will inevitably in each case involve a considera- tion of the prospective results of the legislation under review. It is therefore evident that in a case in which that question is raised the decision of the judiciary will not be confined to a declaration of the logical, or etymological or historical meaning of so many words or sentences in the Constitution, and that the decision will be substantially a declaration of concurrence with the action of the legislature or a dissent from it as being relevant or irrelevant to the accomplishment of a purpose which is admitted to be legitimate, and to which the legislation in question is alleged to be in- cidental. It is therefore evident that the decisions of the judiciary in all such cases will be largely decisions as to matters of fact ; not, in the sense of being decisions as to the existence and nature of past events, but as being decisions as to the relations of prospective facts and circumstances either to present facts and circum- stances or to other prospective facts and circumstances. The ground of the concurrence of the court with the action of the legislature or of its dissent is always alleged to be found in the language of the Constitution, but in its final analysis it is found to be the opinion of the court upon the alleged necessity or iiicidentality of the law to the accomplishment of a particular object. In the determination of successive questions of this character that arise under a written constitution which confers a limited jurisdiction on the legislative organs of government, the judiciary substantially decides the question whether particular enlargements of the body of law by which the people living under the Constitu- tion are to be governed shall take place. But the INTERPRETATION OF A WRITTEN CONSTITUTION. 25 judiciary does not possess any initiatory or spontaneous authority to regulate or control the action of the legis- lative organs of government. It cannot interpose until the exercise of its authority is invoked by litigation, and its decisions are confined to the determination of the rights and liabilities of the parties to the litigation, and the rights and liabilities of all other persons who could invoke its interposition by litigation of a like nature. Moreover the enforcement of its decisions is the duty of the depositaries of the executive power, and hence the strength of the judiciary is dependent upon the confidence in its impartiality, integrity, and ability which its judgments create in the public mind and in the executive and legislative departments of the Government. The following observations by the late Judge Cooley in reference to the influence of events upon the interpretation of the Constitution of the United States of America set forth very clearly the inevitable result of the practical application of the language of every such instrument to the national life and historical experiences of the people who live under it. " The peculiar excellence," says he, " of the American Constitutions was supposed to consist in the fact that they had been deliberately framed as written charters of government, so that they expressed all that was within the intent of the framers, and would stand as agreed upon without being subject to that gradual modification and change which is an inherent quality when the Constitution is unwritten. In the latter case, as in the conspicuous instance of the Constitution of England, there will be a gradual building up and growth which may at the time be wholly imperceptible, and only apparent in its results; but the written 26 INTERPRETATION OF A WRITTEN CONSTITUTION. instrument comes into existence with the under- standing and purpose that its several paragraphs and provisions shall mean for ever exactly what they mean when adopted, and i£ a change is to take place in the Constitution, it must be brought about by the steps which in the instrument itself are provided for, and must consist in such modification of the language and provisions of the instrument, or of such emen- dations or additions as shall be formally and deliberately made. By this means we are supposed to have at all times a written instrument which embodies the whole Constitution ; and when we reach a proper interpretation of the powers it confers and the limitations it imposes upon those powers, as they stood in the minds of the people when adopting it, we are to give effect to that interpretation, in whatever may be done under the Constitution at any time in the future. " Such is the theory underlying American govern- ments. But the theory can be true only in the most general sense. No instrument can be the same in meaning to-day and forever, and in all men's minds. Its interpretation must take place in the light "of facts which preceded and led to it ; in the light of contem- poraneous history, and of what was said by the actors and the ends they had in view. And as men will differ upon facts and differ in mental constitution, so will they differ in interpretation ; and in the case of a written constitution, the divergencies are certain to increase when it comes to receive practical application. And if at any time the people are subjected to a great constitutional crisis, they are not thereafter precisely the same in ideas, sentiments, desires, hopes and aspirations that they were before ; their experience works changes in their views and in their habits of INTERPRETATION OP A WRITTEN CONSTITUTION. 27 thought, and these may be so radical that they seem altogether a new people. But as the people change, so does their written constitution change also : they see it in new lights and with different eyes ; events may have given unexpected illumination to some of its provisions, and what they read one way before they read a very different way now. Then the logic of events may for all practical purposes have settled some questions before in dispute ; and nobody, in his contemplation of the constitution, can separate it, if he would, from the history in which its important provisions have had a part, or be unaffected in his own views by that history " (a). (a) Michigan-American Commonwealths, pp. 345-7. [28] 3. THE DISTRIBUTION OF GOVERNMENTAL POWERS IN THE CONSTITUTION OF THE COMMONWEALTH. Distribution of The Constitution of the Commonwealth expressly governmenta] ' i -r» t £ powers among: g^jj^ distinctlv distributes between the Parliament oi the govern- •/ the"oou?moT°' the Commonwealth, the Crown, and the Federal wealth. Judiciary together with such courts of the States as shall be invested with federal jurisdiction, the legis- lative, the executive and the judicial powers exercis- able under its authority. A similar distribution of legislative, executive and judicial powers is made by the Constitution of the United States of America. But within the limits of the British Empire it is only in the Constitution of the Commonwealth of Australia that such a distribution of governmental functions is made bj?^ a written organic law. In The British Nwth Aonerica Act 1867, which establishes the Dominion of Canada, the expressions " Executive Power " and " Legislative Power " are used as titles for the Third and Fourth Divisions of the Act; and in the ninth section the " Executive Government and authority of and over Canada" are declared " to continue and to be vested in the Queen." The title of the Sixth DISTRIBUTION OF GOVERNMENTAL POWERS. 2» Division of the Act is "Distribution of Legislative Powers," and in that division the area of legislative authority is divided between the Parliament of the Dominion and the Provincial Legislatures. But the Act does not contain a direct, explicit and specific grant of legislative power in language parallel to that which is used in regard to the executive power in section nine; and the expression "judicial power" is not used anywhere in the Act. The title of the Seventh Division is " Judicature," but all the sections covered by that title, except the last one, refer to the appointment of judges and their salaries. The last section empowers the Parliament of Canada to erect a General Court of Appeal for Canada and any additional courts for the better administration of the laws of Canada. But the High Court of the Common- wealth of Australia is established by the Constitu- tion of the Commonwealth, and a minimum number of judges is fixed for it, and "the judicial power of the Commonwealth " is explicity vested in it and in such other federal courts as the Parliament creates together with such other courts as the Parliament invests with federal jurisdiction, and the language used is parallel to that in which " the legislative power of the Commonwealth" and the "executive power of the Commonwealth " are respectively vested in the Parliament of the Commonwealth and in the Queen. It cannot be disputed that all the legislative power exercisable under the authority of The British North America Act 1867 is vested in the Parliament of the Dominion of Canada and in the Provincial Legislatures in distributed portions ; but there is not any simultaneous grant of judicial power to any other governmental organ, and no court is established by the 30 DISTRIBUTION OF GOVERNMENTAL POWERS. No express distribution of governmental powers in the British Consti- tution but separation secured in practice. Act or placed expressly under its protection in regard to its permanence or its constitution. There is there- fore not any organic law binding upon the Parliament of Canada which would prevent it from empowering itself or either of its Houses to act as a court and to perform judicial functions (a). So far as the location of the legislative and the executive and the judicial powers exercisable under the British Constitution is proclaimed by the laws and the administrative documents in which the exercise of these powers is exhibited, all of them are vested in the Crown. It is the King in Parliament who makes the laws ; it is the King in Council who executes them ; and it is the King's courts that interpret and declare the laws. But a separation of the legislative and the executive powers in the exercise of them is secured under the British Constitution by the unwritten but fundamental law which requires that all laws shall be enacted by the advice and with the concurrence of the two Houses of Parliament, and that every executive and administrative act which does not by its intrinsic character require for the performance of it a personal intervention of the monarch, or of a representative directly appointed by him for that purpose, shall be performed by an executive or administrative officer, who must accept the responsibility of it. In regard to the exercise of judicial functions, the distinctly separate and independent position which the British Constitu- tion secures for the superior courts of law and for the judges attached to them is an authoritative recognition and application of the fundamental principle expressed by the Earl of Chatham in his great speech on the (a) In regard to the provincial parliaments see jFteWmjr v. Thomas, L.R. [1S96] A.C., 600. DISTRIBUTION OF GOVERNMENTAL POWERS. 31 arbitrary proceedings of the House of Commons in connection with the expulsion of Wilkes, in which he said " legem facere and legsTn dicere are powers clearly distinguishable from each other in the nature of things." Therefore the distribution of governmental functions which is made by the Constitution of the Commonwealth of Australia is not an innovation upon British constitutional practice ; but the provisions of the Constitution of the Commonwealth which distribu- tively and categorically vest the legislative, the execu- tive, and the judicial powers in three separate organs of government, impose upon the legislative authority of the Parliament of the Commonwealth a legal lim- itation which does not exist in regard to the Parliament of any other portion of the British Empire. Immediately previous to the establishment of the no distribution •^ ^ of governmental Commonwealth of Australia, the Parliaments of the p"™-^^^'!;*^^^^ several colonies which have become States of the ^^^ ^"'''• Commonwealth had authority under imperial legisla- tion " to make laws for the peace, welfare and good government" of the same colonies respectively, subject to a power reserved to the Crown to disallow within two years after its enactment, any law made by any one of the same Parliaments, and subject also to the paramount legislative authority of the Imperial Parlia- ment over all and every part of the British Empire, but without any limitation of the legislative power of the colonial parliaments by specific enumeration of the matters in respect of which it could be exercised. The exercise of the executive powers of the Crown in each of the same colonies was vested in the Governor of the colony, and provision was made by imperial legislation for the establishment of courts of judicature in each of them. But by the Act of the Imperial 32 DISTRIBUTIOiSr OF GOVERNMENTAL POWERS. Parliament 28 & 29 Vict. Cap. 63, sec. 5, it was declared that " Every colonial legislature shall have and shall be deemed at all times to have had full power within its jurisdiction to establish courts of judicature and to abolish and reconstitute the same and to alter the constitution thereof and to make provision for the administration of justice therein " This Statute clearly places the distribution and the exercise of judicial functions in each colony under the im- mediate control of its parliament, and thereby makes the parliament the immediate source of all judicial authority in the colony. The Imperial Parliament is the immediate organ of sovereign power in the British Empire, and is therefore not restricted by any superior authority from exercising either executive or judicial functions. A colonial parliament is not an immediate organ of sovereign power, but when it has been invested by the Imperial Parliament with plenary legislative authority, and there has not been any separate and distinct grant of judicial power to another governmental organ within the same territory, the colonial parliament is not restrained by any com- mand or prohibition of a superior authority from assuming and exercising judicial functions. But the Imperial Parliament has by an explicit and distinct grant conferred upon the Parliament of the Common- wealth a limited legislative authority, and has by equally explicit and distinct grants conferred the executive and the judicial powers exercisable under the authority of the Constitution of the Common- wealth upon the Crown and the Federal Judiciary respectively ; and if this explicit distribution of distinct governmental powers is, to have any legal and substan- tial results in the exercise of them, the Parliament of DISTRIBUTION OF GOVERNMENTAL POWERS. 33 the Commonwealth is clearly prohibited from assuming either executive or judicial functions. The question whether a particular governmental Presumption in ^ r o. favor of validity power exercisable under the authority of the Consti- eLrofse'o?' tution of the Commonwealth is legislative or executive power.''^" or judicial in its nature, is finally determinable by the High Court of the Commonwealth, subject to whatever right of appeal there may be on the question to the Crown in Council, and the High Court is therefore the final arbiter within the Commonwealth of the limits of its own functions and of the question whether any encroachment upon its jurisdiction has been made or attempted by the Parliament or the Crown. But in considering the question of an alleged or apparent encroachment upon its own functions, the Federal Judiciary will at all times be guided by the funda- mental rule the constant observance of which is the foundation of public confidence in its decisions affecting its own position under the Constitution, and which requires that the validity of any apparent exercise of legislative authority which has been promulgated in proper form is always to be presumed until the alleged law is clearly demonstrated to be in excess of the contents of the legislative power conferred by the Constitution, and if at any time the question is a doubtful one, the decision must be in favour of the validity of the impugned law. This rule has been repeatedly asserted and applied to impugned legislation by American and Canadian courts, and by the Judicial Committee of the Privy Council in England. In the case of Valin v. Langlois (a), which was an appeal from the Supreme Court of Canada, the Judicial Com- (a) L.R. 5 Appl. Cases, p. 115. 34 DISTRIBUTION OF GOVERNMENTAL POWERS. mittee o£ the Privy Council said — " It is not to be presumed that the Legislature o£ the Dominion has exceeded its powers unless upon grounds really of a serious character." In the case of Reg. v. Wason {a), it was said by Burton, J., that " in cases of doubt every possible presumption and intendment will be made in favour of the constitutionality of the act." In the case of People V. Supervisors of Orange (b), Harris, J., in delivering the judgment of the Court of Appeals of the State of New York, said : — " A legislative act is not to be declared void upon a mere conflict of interpretation between the legislative and the judicial power. Before proceeding to annul by judicial sentence what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reason- able intendment or allowable presumption." The same rule was declared by Marshall, C.J., in the case of Fletcher v. Peck (c), to be binding on the Supreme Court of the United States in respect to anj?^ impugned legislation. " The question," said he, " whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The Court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes ; but it is not on slight implication aud vague conjecture that the legislature is to be pro- nounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge {a) 17 O.A.R., p. 221. (b) 17 N.Y., 235-41. (c) 6 Cranch, 87-128. DISTRIBUTION OF GOVERNMENTAL POWERS. 35 feels a strong conviction of their incompatibility with each other." It is very difficult, if not impossible, to imagine a Relations of the _ " executive power case of an alleged intrusion by the Parliament of the ,'" thf! « ** legislative. Commonwealth into the sphere of executive functions which could be submitted to the Federal Judiciary for adjudication ; because such an alleged usurpation of executive power by the Parliament would necessarily assume the form of legislation to which the Crown would be a party, and which could not be a subject of judicial investigation until the Crown had proceeded to enforce it. In such a case the question of an alleged usurpation of executive power by the Parlia- ment would be merged in the question of the com- petency of Parliament to legislate upon the particular matter which was asserted to be outside of its legisla- tive capacity. If the Federal Judiciary should decide that the matter was not within the legislative power of the Parliament, the attempt to make it a subject of legislation would be declared invalid on that ground, and not because it was an illegal assumption of execu- tive authority. If, on the contrary, the Federal Judiciary decided that the matter was within the legislative capacity of the Parliament, the Judiciary could not proceed further in its investigation of the question. If the Constitution permitted the two Houses of Enoroaotoents Parliament to legislate without the concurrence of the ^owe'^fponUie Crown, legislation so enacted which encroached upon j'udlda^." the royal prerogative or otherwise intruded into the sphere of purely executive functions might be properly made subject to review by the Federal Judic- iary, if it should be challenged as invalid ; but in that case also the question for determination would be 36 DISTRIBUTION OF GOVERNMENTAL POWERS. whether the impugned legislation was or was not within the legislative power of the Parliament. The conclusion, therefore, to which we are led seems to be that an alleged assumption of executive authority by the Par- liament of. the Commonwealth, as distinct from the question of the legislative capacity of the Parliament, cannot be made a ground for impugning any of its legislation. But the question of an alleged encroachment by the Parliament of the Commonwealth upon the province of the Federal Judiciary is in a very different position as a ground for challenging the validity of any federal legislation, because the relations of the Federal Judiciary to the Parliament and the Crown under the Constitution of the Conimonwealth are totally different from the relations of the Crown to the Houses of Parliament in reference to legislation. The Crown and the two Houses of the Parliament of the Common- wealth co-operate in all federal legislation, and the Constitution requires that the two Houses of the Parliament shall assemble annually to confer with the Crown for legislation, and that the persons appointed by the Crown to administer the executive departments of the government shall not hold office for a period longer than three months if they are not members of the Parliament. The relations of the Crown to the Houses of Parliament are therefore those of periodical consultation and co-operation, and the executive functions of the Crown are complementary to the legislative functions of the Parliament. But the Constitution does not provide for any consultation or co-operation between the Crown and the Judiciary, or between the Parliament and the Judiciary, in the exercise of the judicial power of the Commonwealth, DISTRIBUTION OF GOVERNMENTAL POWERS. 37 and therefore any attempt on the part of the Parlia- ment or the Crown to exercise functions which are essentially and distinctly judicial must be as invalid as any attempt to legislate upon a matter clearly out- side of the legislative power conferred upon the Parlia- ment by the Constitution. The area and the contents of the judicial power of f.s95n'i?i •^ ^ distinction the Commonwealth are not descriptively and collec- J'eg'Sve and tively defined by the Constitution, and the Parlia- SnSSns. ment has authority to extend or restrict from time to time the jurisdiction of particular courts within the limits prescribed by the Constitution. But the absence in the Constitution of any descriptive definition of the nature, or area, or contents of the judicial power exercisable under its provisions does not make the distinction between that power and the legislative and the executive powers exercisable under the authority of the Constitution a matter of doubt or controversy. On the contrary, by vesting the three powers separ- ately in the Crown, the Parliament and the Federal Judiciary, without any further descriptions of the three powers than such as are contained in the three words "legislative," "executive," and "judicial," the Con- stitution necessarily indicates that the ambit of each power shall be determined by the essential and intrinsic meaning of the single descriptive word applied to it. The legislative power conferred by the Constitution upon the Parliament of the Common- wealth is therefore clearly a power to make laws; and the executive power which the Constitution declares to be vested in the Crown is the power to execute, that is to enforce, the laws of the Commonwealth. By the same rule of interpretation the judicial power conferred by the Constitution upon the Federal 38 DISTRIBUTION OF GOVERNMENTAL POWERS. Judiciaiy is primarily the power to declare the laws of the Commonwealth. The Constitution also empowers the Federal Judic- iary to declare the laws of the States in matters in which the rights or liabilities of persons resident in different States are involved. The High Court of the Common- wealth is also invested by Section 73 of the Con- situ tion with jurisdiction as an appellate tribunal to declare the local laws of a State upon an appeal from the Supreme Court of the State in any matter which has arisen and has been adjudicated entirely under the laws of the State. But with this exception, the judicial power exercisable by the High Court or by any other Federal Court does not extend to matters arising entirely under the laws of a State and ex- clusively between persons resident in the State. Limitations of It is evident that the legislative power of the the leg:islative power in regard Commonwealth must be exercised by the Parliament to previous "^ legislation, q£ ^j^g Commonwealth before the executive or the judicial power of the Commonwealth can be exercised by the Crown or the Federal Judiciary respectively, because the executive and the judicial powers cannot operate until a law is in existence for enforcement or exposition. But after a law has been made and promulgated the Parliament cannot control its opera- tion otherwise than by altering it. The Parliament can at any time alter or repeal any law which it has made ; but the alteration or repeal must be effected by an exercise of the legislative power, because that is the only power possessed by the Parliament, and any attempt on the part of the Parliament to do anything which would not be an exercise of legislative power would not be a law, and therefore would not be DISTRIBUTION OF GOVERNMENTAL POWERS. 39 binding on the Judiciary or on any person in the Commonwealth. A law of the Commonwealth is a rule of conduct prescribed by the Parliament in regard to any matter in respect of which the Parliament is authorised by the Constitution to make laws. Hence the question whether the Parliament has in any case attempted to encroach upon the province of the Judiciary is to be determined by ascertaining whether any alleged law prescribes a rule of conduct in reference to any matter within the legislative power of the Parliament, or is an exposition of an existing law, or a declaration that any rights or liabilities have been created or have arisen under an existing law. A new rule of conduct may be prescribed by the Parliament by the repeal or the alteration of an existing law, but any exposition of the purport of the language of an existing law, or any declaration of the existence of any rights or liabilities as the result of its enactment, is not an exercise of legislative power ; and if any such exposition or declaration is made by the Parliament in the shape of apparent legislation, it is an attempted encroachment on the province of the Judiciary and is therefore invalid, if the explicit distribution of the legislative, the executive and the judicial powers made by the Constitution is to be enforced as a part of the supreme law of the Commonwealth. The restriction of the governmental authority of ^("l^^'^^'^j^^^'^"^ the Parliament of the Commonwealth to the exercise liStion'oitee of legislative functions imposes a generic limitation parliament. upon its otherwise unlimited capacity to enforce obedience from all the residents of the Commonwealth to any command it might choose to promulgate in reference to any matter within the scope of its legisla- tive authority. The Constitution does not prohibit 40 DISTRIBUTION OF GOVERNMENTAL POWERS. Judicial legislation by colonial parliaments. the Parliament of the Commonwealth from making retroactive laws ; and none of the Constitutions of the States imposes any such prohibition upon the Parliament of the State. But by limiting the govern- mental authority of the Federal Parliament to the exercise of legislative functions the Constitution of the Commonwealth has indirectly but eifectually pro- hibited to the Parliament any legislation similar in character to some of the legislation which has been enacted in some, if not all, of the colonies which have become States of the Commonwealth. The legislation to which this statement refers has been usually enacted to remedy defects in previous legislation which have been discovered in the course of litigation and have defeated the expectations of the promoters of the previous law. In some of the instances in which such legislation has been enacted, the courts had decided that a tax wiiich had been partially collected under the supposed authority of the previous law was not payable under it, and the amending law has declared that the portion of the tax which had been collected should be deemed to have been legally pay- able, and that the uncollected portion of it had been legally imposed by the previous law and was payable under it. Such amending laws have been repeatedly declared by the American courts to be invalid because they were encroachments upon the exclusive province of the Judiciary under a constitution which conferred separately upon different departments of the govern- ment the legislative, the executive and the judicial powers exercisable under] it (a). The underljang principle of the decisions of the American courts upon (a) See People v. Board of Supervisors, 16 N.Y., 424 ; Governor v. Porter, 5 Humph., 165 ; Mayor &e. v. Horn, 26 Md., 294. DISTRIBUTION OF GOVERNMENTAL POWERS. 41 this subject was concisely stated by Thompson, J., in the case of Dash v. Van Kleelc (a) in which he said — " To declare what the law is or has been is a judicial power ; to declare what the law shall be is legislative." In any case in which the fundamental principle of equality of treatment of all persons in the matter of taxation requires an amendment of a defective law under which a tax has been collected from a portion only of the community, before the defect in it was authoritatively declared by the courts, there is nothing in the Constitution of the Commonwealth to prohibit the Parliament from imposing an exactly similar tax and making it payable in the immediate future, and declaring at the same time that all persons who have paid under the supposed authority of the defective law a sum equal to that which they would otherwise be liable to pay under the amending law, shall be deemed to have paid the tax under the amending law. But the depository and organ of the legislative power can- not be permitted, as it has been forcibly expressed by an eminent American jurist, " to retroact upon past controversies and to reverse decisions which the courts, in the exercise of their undoubted authority, have made ; for this would not only be the exercise of judicial power, but it would be the exercise of it in the most objectionable and offensive form, since the legis- lature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts " (b). In connection with the subject of the distribution of p^^f *''™ °' governmental powers, the question of the capacity of (a) 7 Johns., 477. (6) Cooky's Constitutional Limitations, 6th ed., p. 112. 42 DISTRIBUTION OF GOVERNMENTAL POWERS. a governmental organ to delegate the exercise of a power which has been separately vested in it by the Constitution has been frequently considered by the American courts ; and the particular question of the capacity of a colonial legislature to delegate its author- ity has been considered in three cases by the Judicial Committee of the Privy Council. The first of the three cases was Tlie Queen v. Burah (a), which was an appeal from the High Court of Bengal upon the validity of an Act of the Council of the Governor- General of India by which the Lieutenant-Governor of a territory was empowered to extend to that territory any law or any portion of any law in force in other territories under his command or which might be enacted thereafter by the Council of the Governor- General. In that case the Judicial Committee of the Privy Council declared that where plenary powers of legislation exist in a provincial legislature in respect of a particular subject they may be well exercised either absolutely or conditionally, and when exercised conditionally the provincial legislature may vest in a subordinate authority a discretion as to the time and manner of carrying its legislation into effect, as also the area over which it is to extend. In the two subsequent cases of Hodge v. Ttte Queen (b) and Powell V. Apollo Candle Go. (c), it was declared that a provincial legislature exercising plenary legislative authority which has been conferred upon it by the Imperial Parliament was not in any sense a delegate or agent of that Parliament, and that, within the area of its territorial jurisdiction and upon all matters over (a) L.R. Appl. Cases, vol. 3, p. 889. (&) L.R. Appl. Cases, vol. 9, p. 117. (c) L.R. Appl. Cases, vol. 10, p. 282. DISTRIBUTION OF GOVERNMENTAL POWERS. 43 which it has legislative power, the provincial legisla- ture is supreme and has the same authority as the Imperial Parliament, subject of course to the para- mount legislative authority of the Imperial Parliament whenever it might be exercised. The case of Powell v. Apollo Candle Co., was an appeal from the Supreme Court of New South Wales, and the question involved in it was the power of the Colonial Parha- ment to authorise the Governor of the colony, upon the opinion and advice of the Collector of Customs, to levy a specified duty upon any article which in the opinion of the Collector possessed properties which enabled it to be used for any purpose similar to that for which another article specifically liable to sucli duty was used. The Judicial Committee of the Privy Council declared that it was within the power of the Parliament of New South Wales to authorise the Governor to levy the duty, and that in so doing the colonial legislature was not delegating the legislative power conferred upon it by the Imperial Parliament, because the Govei-nor was only the medium by which the directly expressed will of the legislature in regai'd to a specific matter was effectuated. The facts in this case and the facts in the case The Queen v. Burah were clearly within the principle which has been enunciated by the Supreme Court of the United States in several cases in which the validity of an Act of Congress conferring discretionary powers upon the President has been involved. In the case of Field v. Clark (a) that Court decided that it was within the power of Congress to make the President its agent " to ascertain and declare the event upon which its expressed will was to take effect"; and the same court has repeatedly declared (a) 143 U.S., 649-693. 44 DISTRIBUTION OP GOVERNMENTAL POWERS. that Congress has the power to erect local legislatures in territories not formed into States, and to confer upon such legislatures plenary legislative powers (a). The case of Hodge v. The Queen was an appeal from the Court of Appeal of Ontario, and in that case the Judicial Committee of the Privy Council upheld the validity of an Act of the Parliament of Ontario which empowered Boards of Commissioners to regulate the retail traiSc in spirituous and fermented liquors in the localities for which they were appointed, and to impose penalties for breaches of the resolutions made by the Boards in the exercise of the powers conferred upon them. The principal question involved in the case was whether the regulation of the traffic was vested in the Provincial Legislatures or in the Parliament of the Dominion. The Judicial Committee of the Privy Council decided tliat the Parliament of Ontario had acted within the powers conferred upon the Provincial Legislatures by section 92 of The British North America Act 1867 in subsections 8, 15 and 16, and that the legislation which was impugned was not in conflict with any legislation of the Parliament of the Dominion. Section 92 of The British North America Act 1867 confers upon the Provincial Legislatures in subsection 8 the exclusive power to make laws upon the subject of " municipal institutions." The power to establish local administrative authorities and to delegate to them power to make by-laws and regu- lations in respect of purely local matters has always been regarded as inherent in legislatures upon which plenary legislative powers have been conferred by the (a) See Vincennes University v. Indiana, 14 How., 268 ; United States V. Reynolds, 98 U.S., 145 ; and National Bank v. Yankton, 101 U.S., 129. DISTRIBUTION OF GOVERNMENTAL POWERS. 45 sovereign legislative authority which has created them. But the Provincial Legislatures of Canada are not possessed of plenary legislative powers, and it is only by virtue of the specific grant contained in section 92 of The British North America Act 1867 that they are authorised to create local administrative authorities and confer limited legislative powers upon thera. The Parliament of the Commonwealth is not possessed of plenary legislative powers in regard to the whole Commonwealth, and the power to create subordinate legislative bodies is not specifically conferred upon it by the Constitution. Power is expressly conferred upon the Parliament by section 51 of the Constitution to make laws with respect to " matters incidental to the execution of any power vested by this Constitution in the Parliament, or in either House thereof, or in the Government of the Commonwealh, or in the Federal Judiciary, or in any Department of the Commonwealth ;" and whatever comes properly within this provision is within the legislative power of the Parliament. But the creation of a subordinate legislative body is clearly not a matter incidental to the execution of any specific power vested in the Parliament by the Constitu- tion. Among the subjects enumerated in section 51 are " Marriage and Divorce and Matrimonial Causes." Can it be contended that the Parliament of the Com- monwealth has power to direct the periodical election of a body of delegates from the several States to make and promulgate laws on these subjects which would be enforceable by the Federal Courts ? The same question may be asked with respect to each of the other subjects enumerated in section 51, and if the answer is in the negative in the one case, it must be equally in the negative in all the other cases. 46 DISTRIBUTION OF GOVERNMENTAL POWERS. Plenary legislative power of the Federal Parliament. Under section 52 of the Constitution the Parliament of the Commonwealth has " exclusive power to make laws for the peace order and good government of the Commonwealth with respect to the seat of Government of the Commonwealth and all places acquired by the Commonwealth for public purposes." The language of this section is clearly intended to confer upon the Parliament of the Commonwealth plenary legislative power over all territories under its exclusive jurisdic- tion, and therefore includes the power to establish municipal institutions within any such territory. But in respect to all such territories the Parliament is the depositary and the organ of a legislative power which has been distinctly and separately conferred upon it ; and if the proposition that the Parliament has not the power to transfer to any subordinate la'^'^-tive body any co-ordinate organ of .c^'-". ^ , * in ritish Power to create municipal institutions. ^^^t. the 'er over 51 is or to any co-ordinate Commonwealth the wl any one of the mattjL, -^,-, ^^ „ . correct, it must be e|i ^^ ^V, -<»?$?Sw "~"Zo confer upon a^ subordm^^^ ur "co-ordinate/ authority the whole^o^SP^islati^ power over any/of the additional niatte;v,^ ^^iij|igjfF which it has autp-iority to legislate under siw'^- H -if era Vl\. The d\y,^ thelexc'on whether the depositary and organ of a^N^ 'yfuni^egislative power specifically con- ferred by 4?<¥a(^™fount and sovereign legislative authority pos's^^^es the constitutional capacity to delegate any substantial and essential portion of the power so conferred upon it was not discussed by the Judicial Committee of the Privy Council in any of the three cases above mentioned in which the nature of the plenary power of legislation possessed by a colonial legislature was declared. The counsel for the DISTRIBUTION OF GOVERNMENTAL POWERS. 47 appellant in the case of Hodge v. The Queen appears from the report of the case to have quoted some passages on the subject from Cooley on Constitutional Limitations, but there is not any reference to the quotations in the judgment of the court; and in that part of the judgment in which the Provincial Legislature of Ontario is declared to be supreme within the limits of the subjects and the area over which it has jurisdiction, and to have " the same authority as the Imperial Parliament or the Parliament of the Dominion would have had under like circumstances," the authority in question and in regard to which the language used by the court is directly applied, is the authority " to confide to a municipal' institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment and with the object of carrying the enactment into operation and effect." The court proceeds to add — " It is obvious that such an authority is ancillary to legislation and with- out it an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail " (a). These propositions were amply sufficient to cover the facts in the case before the court, and the court therefore did not find it necessary to discuss the ulterior question of the power of a colonial legislature to delegate entirely its legis- lative power over any one or more subjects to any other legislative organ. If that question should at any time come before the High Court of the Common- wealth for decision, whether in regard to the constitu- tional capacity of the Parliament of the Commonwealth or of a Parliament of a State, it would be incumbent upon the assertors of such a capacity to demonstrate (a) p. 132. 48 DISTRIBUTION OF GOVERNMENTAL POWERS. its existence from the terms in which the legislative power has been conferred by the Imperial Parliament, and if the power of delegation cannot be proved to have been specifically granted, it cannot be presumed to have been granted by implication any more than any other substantial and separate power not specifically conferred or directly involved in the nature and substance of the legislative power per se can be presumed to have been granted in the same manner. In this connection the following observations by the same eminent American jurist whose words have been previously quoted merit particular attention :— " One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain ; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust " (a). the constitiiti' There is one significant provision of the Constitution weluh°°"""°"" o^ ^^^ Commonwealth which has an important connec- tion with the question of the capacity of the Parlia- ment of the Commonwealth to delegate any portion of its legislative power to any other governmental organ within the Commonwealth. That provision is con- (a) Cooley's Constitutional Limitations, 6th ed., p. 137. DISTRIBUTION OP GOVERNMENTAL POWERS. 49 tained in section 114, which declares that " A State shall not without the consent of the Parliament of the Commonwealth raise or ma,intain any naval or military force . . ." If the language used in this section could be construed independently of any other pro- vision of the Constitution it would not import anything more than a restriction upon the legislative power of the Parliaments of the several States in regard to the matter mentioned in it. But the legislative authority of the Parliament of the Commonwealth in regard to the naval and military defence of the whole Common- wealth and the several States is made exclusive by the previous provisions of sections 52 and 69. It therefore becomes necessary to inquire whether the words " consent of the Parliament of the Common- wealth" in section 114 empower the Parliament of the Commonwealth to authorise the Parliaments of the States to legislate for the raising and maintenance of naval and military forces as amply as the Parliaments of the several Colonies had power to do so before the establishment of the Commonwealth, or only empower the Parliament of the Commonwealth to authorise the Governors of the several States to raise and maintain naval and military forces in the several States in accordance with such legislation of the Parliament of the Commonwealth as shall prescribe the strength, the character, the organisation and the discipline of the forces to be raised. If the words " consent of the Par- liament of the Commonwealth " are to be construed as only empowering the Parliament of the Commonwealth to authorise the Governors of the States to raise and maintain naval and military forces under such legis- lation of the Parliament of the Commonwealth as that above mentioned, then section 114 does not empower 50 DISTRIBUTION OF GOVERNMENTAL POWERS. the Parliament of the Commonwealth to delegate any portion of its legislative power in respect of the defence of the Commonwealth and the States to the Parlia- ments of the States. The intervention of the Parlia- ments of the States would always be necessary to provide the requisite funds for maintaining and equipping the forces raised in the several States by the Governors under the authority conferred upon them by the Parliament of the Commonwealth for that pur- pose, but the simple grant of a sum of money by the Parliament of a State for expenditure by the Governor in the execution of that purpose would not be an exer- cise of a substantive legislative power in respect of the defence of the Commonwealth and the States. On the other hand, if the words " consent of the Parliament of the Commonwealth '' are to be construed as author- ising the Parliament of the Commonwealth to empower the Parliaments of the States to legislate for the rais- ing, maintenance, equipment, organisation, strength and discipline of naval and military forces in the several States, then section 114 confers upon the Par- liament of the Commonwealth a direct authority to delegate to the Parliaments of the States a portion of the legislative power which the Constitution has primarily vested in that Parliament alone. The strong- est argument which appears to militate against this construction of the words is that it converts a qualiii- cation or a conditional relaxation of a restriction upon the powers of the Parliaments of the States into a direct grant of a power of delegation of legislative authority to the Parliament of the Commonwealth; but there is not any restriction placed upon the nature or form of " the consent of the Parliament of the Com- monwealth," and it seems difficult to import any implied DISTRIBUTION OP GOVERNMENTAL POWERS. restriction into it without begging the whole question i / whether the words contain a grant of authority to V y> delegate legislative power or do not. ^ '^ [52] 4. THE GOVERNOR-GENERAL. Office of Section 2 of the Constitution of the Commonwealth Governor- by'the"""'^'"*'' declares that :— Constitution. " 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 Consti- tution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him." Section 61 declares that : — " The executive power of the Commonwealth is vested in the Queen, and is exercisable by the Governor-General as the Queen's repre- sentative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." No provision The British North America Act 1867 does not con- made in the Can^'rfo?tii°e* ^^^^ ^"^7 Similar provisions for the appointment of the S?a°Governor- Govemor-General of the Dominion of Canada and for his exercise of executive authority in the Dominion ; nor does the Constitution Act of any one of the States THE GOVERNOR-GENE Ri*L. 53 of the Commonwealbh contain any such provisions in regard to the Governor of the State. They are peculiar to the Constitution of the Commonwealth, and they confer upon the Governor-General of the Commonwealth a statutory position which has not been conferred by the Imperial Parliament upon the Governor-General of Canada, or upon the Governor of any other part of the Empire to which local autonomy has been granted. The Governor or Governor-General of any colony or other part of the British Empire is the local represen- tative of the Crown, which is the supreme depositary of the executive authority of the Empire, and which has always been a constituent part of the British Con- stitution, and was anterior in existence to the Imperial Parliament, of which it is also a part. The statutes of the Imperial Parliament which provide for the creation of colonial legislatures frequently confer upon the Governor particular powers and functions in relation to the legislature of the colony in which he holds his oflSce, and the local legislature frequently confers upon him particular powers and functions in relation to local matters. But with these exceptions the whole of the powers and functions exercisable by the Governor or Governor-General of any part of the British Empire, except the Governor-General of the Commonwealth of Australia, are conferred upon him by the Letters Patent which create the office which he holds, and hy the Commission by which he is appointed to fill it. The appointment of a Governor-General for the Doubtful IT • 1 1 -iTp legality of the Commonwealth 01 Australia is clearly provided tor Letters Patent which purport by section 2 of the Constitution of the Commonwealth, *^^™*^^ "'^ and the third introductory section expressly declares oZf^iot the that the Queen may at any time after the proclamation Commonwealth. 54 THE GOVERNOR-GENERAL, of the Commonwealth " appoint a Governor-General for the Commonwealth." But the Letters Patent which have been issued for the purpose of assigning to the Governor-General the powers and functions which section 2 of the Constitution of the Commonwealth expressly declares he " shall have and may exercise in the Commonwealth during the Queen's pleasure," purport to " constitute order and declare that there shall be a Governor-General and Commander-in-Chief (hereinafter called the Governor-General) in and over our Commonwealth of Australia." If the objections urged by the late Chief Justice Higinbotham of Victoria (a) against some of the instructions which were issued to the Governors of the Australian colonies previous to the year 1892, and which he regarded as purporting to grant powers already vested in the Governor of Victoria by the Constitution of that colony, were well founded, the words above quoted from the Letters Patent are of doubtful legality, and prima facie inconsistent with the subsequent command to " Our said Governor-General to do and execute, in due manner, all things that shall belong to his said com- mand, and to the trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of 'The Commonwealth of Australia Constitution Act 1900.'" The words last quoted clearly recognise the statutory position of the Governor-General, and it is certainly difficult to reconcile the continued existence of an independent right in the Crown to create and constitute the office of Governor-General of the Commonwealth with the express declaration of the Constitution of the Common- (a) See Memoir of George Higinbotham, by Professor Morris, pp. 209-22. THE GOVEBNOR-GENERAL. 55 wealth that "A Governor-General appointed by the Queen shall be Her Majesty's representative in the. Commonwealth" and with the authority expressly conferred upon the Queen by the third introductory section to appoint the Governor-General after the proclamation of the Commonwealth. In addition to making statutory provision for the statutory " regard to rivers, the public right to the usc of rivcrs for navigation is that all tidal rivers are navigable by common right as far as their waters rise and fall with the flow and ebb of the tide, but that in regard to fresh water rivers, whose waters are not affected by the tides, the right of public navigation is dependent upon usage (a). The pro- perty in the beds of all tidal rivers and waters is vested by the English common law in the Crown. Under the same law the property in the beds of all fresh water riversis vestedin the riparian proprietors of the banks of the rivers. But wherever the public right of navigation exists in regard to a fresh water river it is paramount to the proprietary rights in the bed of it (b). In accordance (a) See King v. Montague, 4 B. & 0. , 96 ; Bristow v. Cormican, L.R. 3 A.C., 641; Orr Ewinq v. Golquhoun, 'L.'B.. 2 A.C., 839; Hargreaves v. Diddamn, L.R. 102 B., 582. (6) See Anon, 1 Camp., .517; and Colchester v. Brook, 7 Q.B., 339. FEDERAL CONTROL OF RIVERS. 105 with the rule of the common law in reference to the right of public navigation independent of usage, the jurisdiction of the courts of admiralty in England was confined to the sea and tidal rivers. The same terri- ?,^? ™'« ■" *he United States of tonal limitation to the jurisdiction of the courts of fegarfto the admiralty was observed in the United States oflhe'Ssof' America until the year 1851, when the Supreme Court, "'*'""''''*y- in the case oiThe Genesee Chiefv.Fitzhugh{a)oveTruled previous decisions of the Federal Judiciary and declared that the jurisdiction of the federal courts of admiralty in that country extends to all waters, whether fresh or salt, which are navigable and are capable of being used as means of commercial intercourse between any two States or with foreign nations. The decision in that case was not based upon the power conferred by the Constitution upon Congress to regulate trade and commerce between the States and with foreign nations, but upon the declaration in the Constitution that the judicial power of the United States should extend " to all cases of admiralty and maritime jurisdiction." The Constitution of the Commonwealth of Australia does not contain any description or enumeration of the contents of the judicial power of the Commonwealth ; but section 76 declares that the Parliament may make laws conferring original jurisdiction on the High Court in any matter of admiralty and maritime jurisdiction ; and section 77 empowers the Parliament to define the jurisdiction of any federal court other than the High Court with respect to any of the matters mentioned in sections 75 and 76 ; and under these sections the power of the Parliament of the Commonwealth is equal to the power of the American Congress to declare to what rivers and waters the jurisdiction of the courts of (a) 12 How., 443. 106 FEDERAL CONTROL OP RIVERS. Navigable character of a river not deter- mined by the instruments or methods of navigation used upon it. admiralty in the Commonwealth shall extend. But neither the power of the Congress of the United States of America nor the power of the Parliament of the Commonwealth of Australia to control the use of navigable rivers is dependent upon its power to confer upon federal courts jurisdiction in admiralty and maritime cases. In the case of The Lottawanna (a) the Supreme Court of the United States declared that " The power to regulate commerce is the basis of the power to regulate navigation and navigable waters and streams," and section 98 of the Constitution of the Commonwealth of Australia expressly declares that — " The power of The Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State." The trade and commerce with respect to which the Parliament of the Commonwealth has legislative power includes trade and commerce " among the States," and it therefore extends to navigation upon rivers between the States. If it were possible to suggest a doubt upon the matter the extension of the power to " railways the property of any State " would conclusively dissipate it. It has been repeatedly decided in the United States that the navigable character of a river, by virtue of which it is subject to the power of Congress in relation ' to trade and commerce, does not depend upon the instruments or methods of navigation by which com- merce may be conducted upon it. If it is capable of use for the purposes of trade by the employment of any instrument or method of transportation, its use for (a) 21 Wall., 557, 558. FEDERAL CONTROL OF RIVERS. 107 that purpose is subject to the control of Congress (a). But the control of Congress does not extend to naviga- tion conducted wholly upon the internal waters of a State which are not accessible by navigation from any other State (6). It has also been decided by the Supreme Court of i^prove'the the United States that the power of Congress to con- SverTithin the trol the use of navigable rivers for the purposes of the statT^ °' navigation does not exclude the power of a State to improve, within the boundaries of the State, the passage of any navigable river, and to impose tolls for the use of the river within the State for the purpose of providing funds to pay the interest upon the money expended in improving the passage of it (c). A State may also lawfully establish within its boundaries ferries over navigable rivers, and grant licenses to boats and boatmen to carry goods and merchandise across them, and may forbid unlicensed persons or boats from using- the ferries, although the river is a highway for commerce between several States or for foreign com- merce (d). In the absence of any controlling legislation hj the a state may erect bridges &c. Parliament of the Commonwealth, the regulation of ^^iohdonot ° obstruct the use of a navigable river which is entirely within com'^^ice. the boundaries of a State is necessarily within the (a) See Carter v. Thurston, 58 N.H., 104; and The Montello, 20 Wall., 430, 441. (6) Veazie v. Moor, 14 How., 568. (c) Huse V. Glover, 119 U.S., 543 ; Sands v. Manistee River Imp. Co., 123N.S.,'288. (d) Conway v. Taylor, 1 Black, 603 ; Wiggins Ferry Co. v. East St. Louis, 107 V.S., 365. 108 FEDERAL CONTROL OF RIVERS. legislative power of the State, because the river is a part of the territory of the State, and the State may- authorise the erection of bridges over it, or other public facilities for travel, or trade, or industry, which do not substantially obstruct foreign or inter-state com- merce. But in all such cases, apart from the restriction imposed upon the Parliament of the Commonwealth by section 100 of the Constitution, the jurisdiction of the State is subject to the paramount legislative power of the Commonwealth to regulate the use of every river that is capable of being used as a medium of foreign or inter-state commerce, and the decisions of the Federal Courts in the United States of America support the proposition that the power of the Parlia- ment of the Commonwealth to control the use of navigable rivers as channels of commerce includes the power to improve their navigation and to declare what shall be deemed to be obstructions, and to require their removal (a). It has also been decided by the same courts that the power of Congress to control the navi- gation of rivers includes the power to take private property for the construction of facilities for naviga- tion and to impose tolls for the use of them (6). The restriction imposed upon the Parliament of the Commonwealth by section 100 of the Constitution is not confined to navigable rivers. But non-navigable rivers are not primarily within the legislative power of the Parliament over trade and commerce ; and it (a) Coonhy V.Albany, 132N.Y. , 145; Opinions of Attorney-General, vol. 15, p. 284. (6) United titaten v. Oregon Railway and Navigation Co., 16 Fed. Rep., 524; United States v. Louisville and Portland Canal Co., 1 Flip., 260. FEDERAL CONTROL OF RIVERS. 109 was very truly said by the Supreme Court of the United States in the case of The Montello (a) — "It is not every small creek in which a fishing skiif or gunning canoe can be made to float at high water which is to be deemed navigable ;" and in order to give tt the character of a navigable stream " it must be generally and com- monly useful to some purpose of trade or agriculture." The consideration of the extent of the restriction a state may not , authorise the imposed upon the Parliament oi the Commonwealth diversion of the waters of a river by section 100 of the Constitution involves the con- o^JJ^'ariln'"*™' sideration of the question of the power of a State to i"'°i'™'°''- authorise the diversion of the waters of a river flowing through it, or a diminution of their quantity, to an extent which would aff'ect the rights of riparian pro- prietors in another State. There is not any restriction directly and expressly imposed by the Constitution upon the several States in respect of their use of the rivers of the Commonwealth for the purposes of con- servation or irrigation, but it would be an anomalous result if each State has the power under the Constitu- tion to divert the water of a river for the benefit of the residents of the State, or to diminish the quantity of it, to the detriment of the residents of another State, whether the river is navigable or not, and that the Parliament of the Commonwealth cannot for any pur- pose that would be beneficial to all the States, or to a majority of them, do the same thing. It has already been stated that the imposition of therestriction imposed on the Parliament of the Commonwealth by section 100 implies that, in the absence of any such restriction, Parliament would have a larger power to control the use of the waters of the rivers of the Commonwealth than that which the Constitution has conferred upon (a) 20 Wall., 430-9. 110 FEDERAL CONTROL OF RIVERS. it ; and the terms in which the restriction is imposed indicate that such larger power would be exercisable by the Parliament of the Commonwealth as a part of its legislative power with respect to trade and com- merce betweeft the States and with other countries. But the Constitution has not conferred any legislative power upon the States with respect to such trade and commerce ; and the power of the Parliament of the Commonwealth with respect to that matter is from the nature of the power necessarily exclusive./ If the several States were so many independent nations, any interference in one of the States with the waters of a river that flowed through that State and another State, to an extent that would produce any damage to the riparian proprietors in the other State, would be a matter of international complaint for which redress in the last resort would be sought by war. But the States of the Commonwealth are constituent parts of the same nation, and any act on the part of any one of them which inflicts injury on the residents of another State of the Commonwealth, and which would be a matter of international complaint, if the two States were separate and independent nations, is a matter for redress in the High Court of the Commonwealth under the provision of the Constitution which confers upon that Court jurisdiction in all matters between States. It has been decided by the Supreme Court of the United States of America that under the provision of the Constitution of that country which extends the judicial power of the United States to " controversies between two or more States," one State may file a bill in equity against another State to determine the question of a disputed boundary (a). Under the Constitution of the (a) Rhode Island v. Alassachusetts, 12 Peters., 657. FEDERAL CONTROL OF RIVERS. ill Commonwealth the High Court has clearly jurisdiction to determine a similar dispute between two States of the Commonwealth, and it must as a logical sequence have jurisdiction of the question whether any portion of the territory within the boundaries of one State can be deprived of all that makes that portion of its territory valuable by the aggressive legislation of another State. The Constitution of the Commonwealth also confers Eipaiian pro- prietor in one original iurisdiction upon the High Court in all matters ?**'»'? ™iy .^ ' o o 1 o invoke the aid between a State and a resident of another State, and ^udidfry'^to''' therefore a private riparian proprietor in one State pi-oduoed^by^ may invoke the intervention of the Court for redress with riparian ..... T T right in another of an injury to his riparian rights produced by the state. interference of another State with the waters of a river to which his riparian rights are attached. If the interference which produces the injury is the act of a private person or of a.ny public body acting under the legislation of a State, a suit for redress may be brought against such private person or public body. In the case of Holyolce Water Power Go. v. Connecticut River Co., which was decided in the United States in the year 1884 (a), the Legislature of Connecticut had author- ised the Connecticut River Company to raise their existing dam across a river in Connecticut to improve the navigation and to maintain the water power of the company. The Connecticut River Company's dam was about sixteen miles below the dam and factories of the Holyoke Water Power Company in Massachusetts. The Connecticut River Company proposed to raise its dam in Connecticut so high that it would cause a diminution in the fall of the river above the dam for (a) 22 Blatoh., 131. 112 FEDERAL CONTROL OF RIVERS. six or seven months of the year to the detriment of the Holyoke Compan}'. The Holyoke Company filed a bill in equity in the Circuit Court of the United States for the district of Connecticut, praying for an injunction restraining the Connecticut River Company from raising its dam to the proposed height. The court granted the injunction, and the concluding portion of the judgment of Shipman, J., runs as follows : — " The owner of land abutting upon a navigable river owns it subject to the right of the State to improve the navigation of the river, because the land is within the governmental control of the State ; but it seems to me that the State obtains, by virtue of its govern- mental powers, no governmental control over, or right to injure, land without its jurisdiction. Jurisdiction confers the power and right to inflict consequential injury, but where no jurisdiction exists the right ceases to exist. It is a recognised principle that the statutes of one State in regard to real estate cannot act extra-territorially. As Connecticut has no direct jurisdiction or control over real estate in another State, it cannot indirectly, by virtue of its attempted improvement of its own navigable waters, control or subject to injury foreign real estate. If this resolution is a bar to an action for any consequential injury to land, or to rights connected with land in Massa- chusetts, Connecticut is acting extra-territorially. Let there be a decree enjoining the defendants against any further raising of its present dams to a greater height than the height occupied by the respective portions of the present structure.'' The same principle of inter-state law was enunciated and applied by Treat, J., in the case of Rutz v. City of FEDERAL CONTROL OF RIVERS. 113 St. Louis (a). " Missouri (said he) cannot pass a law to govern Illinois, its citizens and their property situate in Illinois ; and if, pursuant to a statute of Missouri, a dyke was erected destructive of property in Illinois belonging to citizens of that State, such statute cannot be pleaded against them, for the statute of Missouri could not operate extra-territorially." In conformity with these declarations of inter-state law under the Constitution of the United States, the State of New Hampshire has enacted a law authorising the Governor to institute and prosecute sxaits at law, or in equity, in the name of the State, whenever, in his judgment, such course shall be necessary to prevent the injurious diversion of the waters of rivers which flow from other States into the State of New Hampshire (6). Inasmuch as the power of the Parliament of the stXrovet'the Commonwealth to control the use of the rivers of the u,drVoun-'" Commonwealth is derived from its legislative power in respect of trade and commerce between the States and with other countries, it extends primarily to such rivers only as are navigable and which are therefore capable of being used as channels of such trade and commerce. With respect to all other rivers and streams, the legislative power of a State is plenary within its boundaries. It has also been decided by the Supreme Court of the United States that where a stream is of small value for navigation and of great importance as a source of water-power, a State may devote it to that use ; and in particular circumstances (a) 7 Fed. Rep., 428. (6) Laws of New Hampshire, Session of 1895, p. 336. lU FEDERAL CONTROL OE RIVERS. a State may destroy the navigability of a stream in order that its waters may be used for irrigation (a). In reference to the legislative power of a State in such cases it was said by the Supreme Court of the Ter- ritory of New Mexico in the case of The United States V. Rio Grande Dam Co. (h) — " Here the paramount interest is not the navigation of the streams but the cultivation of the soil by means of irrigation. Even if by the expenditure of vast sums of money in straightening and deepening the channels, the streams of this arid region could be rendered to a limited extent navigable, no important public purpose would be served by it. Ample facilities for transportation, adequate to all the requirements, are furnished by the railroads, with which these comparatively insignifi- cant streams could not compete. But, on the other hand, the use of the waters of all these streams for irrigation is a matter of the highest necessity to the people inhabiting this region, and if such use were denied them it would injuriously affect their business and prosperity to an extent that would be an immeasur- able public calamity." In this case the bill of complaint alleged that the appropriation of the waters of the Rio Grande which was proposed by the defendants would seriously obstruct the navigability of the river from the place where the dam of the defendants would be constructed to the mouth of the river. The defendants denied the allegation and the bill was dismissed for want of equity. The plaintiffs appealed to the Supreme Court of the United States, and the decree of the Court (a) St. Anthony Falls Water Power Go. v. Board dkc, of St. Paul, 168 U.S., 349 ; State v. City of Eau Claire, 40 Wis., 533. (6)51Pao. Rep., 674. PEDERAL CONTROL OF RIVERS. 115 below was reversed, and the case remanded with instructions to set aside the decree of dismissal, to order an inquiry into the question whether the intended appropriation of the waters of the river by the defend- ants would substantially diminish the navigability of ohe river within the limits of its present navigability, and if so to enter a decree restraining the proposed operations of the defendants to the extent to which they would produce that result. The Court acknow- ledged the power of a State to alter the rule of the common law as to the rights of riparian proprietors, and to permit the appropriation of waters of rivers within the boundaries of the State for such local pur- poses as the State might deem proper. But the Court declared that the power of a State in all such cases was limited by the superior power of the Federal Gov- ernment to secure the uninterrupted navigability of all rivers within the United States, and that a recognition by Congress of the appropriation of waters in contraven- tion of the common law rule regarding navigable rivers did not confer upon the States the right to appropriate all the waters of the tributary streams which unite in a navigable watercourse, and so destroy the navigability of it, in derogation of the interests of all the people of the United States (a). The restriction imposed by section 100 of the Con- "Reasonable use " is a ques- stitution upon the power of the Parliament of the *'">! «' f^'^^- Commonwealth to control the use of the navigable rivers of the Commonwealth is confined to the reservation of the right of a State and of the residents therein to the reasonable use of waters for conser- vation or irrigation. The question of " reasonable (a) 174 U.S., 690. 116 FEDERAL CONTROL OF RIVERS. use " is one which ultimately resolves itself into a question of fact, and its determination in each case must depend upon the concomitant circumstances of the alleged conflict between the impugned legislation of the Parliament of the Commonwealth and the right reserved to the States by the restriction imposed upon the legislative power of the Parliament. It is only after the Parliament has exercised its legislative power in regard to the use of a navigable river as a medium of trade and commerce that any question of the extent of the restriction imposed upon it by section 100 of the Constitution can arise for judicial decision. In the absence of any legislation to which the restriction could apply no controversy can take place between the Commonwealth and a State in regard to the right of the State and its residents to conserve the waters of a navigable river or to use them for irrigation. But in the ' event of a State or any of its residents constructing, for either of those purposes, a dam or other works which would totally obstruct the navigation of a river which flowed through two or more States, the question of the right of the State to deprive the residents of another State of the use of the river as a natural highway and channel of communication and travel between the two States would be a matter " between States " in respect of which the Constitution has con- ferred original jurisdiction upon the High Court in section 75, and in respect of which the Parliament is empowered by section 77 to define the jurisdiction of any federal court other than the High Court, and to invest any court of a State with federal jurisdiction. It is impossible to forecast the character of any legis- lation which the High Court would deem to be contrary to the restriction imposed upon the legislative power FEDERAL CONTROL OF RIVERS. 117 » of the Parliament of the Commonwealth by section 100 of the Constitution. But it cannot be supposed that any legislation would be declared invalid by virtue of the restriction simply because it required the several States, and the residents therein, to exercise the right reserved to them by section 100 in a manner that would preserve, for the residents of all the States, the unrestrained use of any navigable river for the purposes of trade and commerce between the States and with other countries. Such an interpretation of the restric- tion would enable anj;- State to exempt whatever portion of any navigable river was within its boundaries from the operation of all legislation of the Parliament of the Commonwealth which purported to regulate the use of the river as a highway for trade and commerce between the States and with other countries. Moreover it is to be noted that the right reserved to the States and their residents by section 100 is expressly confined to " the reasonable use of the waters of rivers for conser- vation and irrigation," and it does not grant any right to occupy any part of the bed of a river for the purposes mentioned. It is therefore evident that the right reserved does not include the right to obstruct the navigation of a river by dams or other structures erected in the bed of the river, or on its banks, which are a part of the bed (a). (a) Ilmoard v. IngersoU, 15 How., U.S., 415 ; Height v. Keokuk, 4 Iowa, 199. [118] THE FEDERAL POWER OVER COMMERCE AND THE POLICE POWER OF THE STATES. ofthf ome™''° '^^^ phrase "police power" has acquired a firmly Ke's"*""' fixed place in American constitutional law, but it has not yet received from the Supreme Court an author- itative definition which clearly and concisely expresses the contents and limits of the power which is indicated by it, in a manner which would enable such a definition of it to be used as a test whenever a question as to the legitimacy of any alleged exercise of it arises. The phrase appears to have been used for the first time by the Supreine Court in the judgment delivered by Marshall, C.J., in the case of Brown v. Maryland (a). In delivering the judgment of the majority of the Supreme Court in The Slaughter House Cases (b), Miller, J., said — "The power is and must be from its very nature incapable of any very exact definition or limitation." Many years previously Chief Justice Shaw of Massa- chusetts had said that — " It is much easier to perceive (a) 12 Wheaton, 419. (6) 16 Wall., 36. POLICE POWER OF THE STATES. 119 and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise" (a). But other eminent American judges have ventured at diiFerent times to define the nature and scope of the police power of the States, and among the most successful of such attempts is that of Chief Justice Redfield of Vermont, who said that " It extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State " (b). Probably the most concise, and at the same time the most comprehensive, definition of the police power which has been yet given, or suggested, in addition to those which have come from the judiciary, is that given by Mr. W. R. Howland in the Harvard Law Review, vol. 4, p. 22, where he describes it as " the power possessed by a government to protect its citizens from danger, disease and vice." It is evident that the exercise of the police power as thus defined may frequently impose legislative restrictions upon the conduct of the inhabitants of a State in their pursuit of their daily vocations, and in their commercial and social intercourse with one another, and with the inhabitants of other States or foreign countries. In the earliest and immediately sub- sequent periods in the history of political societies, trade and commerce occupy much smaller spaces in the life of the people, and are conducted in much simpler methods, than the spaces which they fill, and the methods by which they are pursued, when they come to absorb as large a portion of the time and energy of a majority of a community as they do in the cases of all the great nations of the world to day. Consequently in the (a) Commonwealth v. Alger, 7 Cush., 84. (b) Thorpe v. Butland, tj6S — necessi'ty. Passeugev Gases{c) when he said — " The police power of the State cannot draw within its jurisdiction objects which lie beyond it.'' But the exclusive character of the legislative power of the Parliament of the Com- monwealth over trade and commerce with other (a) Tucker on the Constitution, vol. 2, p. 539. (b) 9 Wall, 41. (c) 7 How., 283. POLICE POWER OP THE STATES. 145 countries and among the States does not deprive the Parliaments o£ the States of the power to enact laws to provide for the immediate protection of the lives, health, safety and property of the persons within theirjurisdiction, in anycontingency not directly covered by legislation of the Parliament of the Com- monwealth, or arising out of any failure or neglect of the Parliament of the Commonwealth to legislate upon any matters within its exclusive control. When- ever the Parliament of the Commonwealth has directly legislated in respect of any matter within its legislative power, the Parliament of a State cannot, .by an alleged exercise of its police power, directly contravene the legislation of the Commonwealth upon the same matter; but if the Parliament of the Commonwealth fails to legislate upon the matter in a manner sufEcient to provide for the protection of life and property in a State, it cannot be presumed that the Parliament of the Commonwealth intended by its inaction that any detriment should accrue thereby to the inhabitants of any State, and therefore the silence of the Parliament can never be construed as a restriction upon any exer- cise of the police power of a State which is directed exclusively to the protection of the residents of the State from any immediate or probable danger or disaster. For example, lighthouses, lightships, beacons and buoys are placed by sections 52 and 69 within the exclusive jurisdiction of the Parliament of the Commonwealth. But if that Parliament fails to erect lighthouses, or to place buoys or beacons, in any place within a State where they are necessary for the safety of vessels, the State may erect them at its own cost, but it cannot impose charges in respect of them upon vessels coming into the State from other States or from other 146 FEDERAL POWER OVER COMMERCE AND countries, because the imposition o£ such charges would be an exercise of legislative power which operated directly upon a matter over which the legislative power of the Parliament is expressly- declared by the Constitution to be exclusive. A State may also in the event of the failure or deficiency of federal legislation, enact laws to prevent the entrance of diseased persons or infected articles of commerce into its territory ; but all the provisions of such laws must be relevant to the protection of the health and lives of the inhabitants of the State, and must not place any burden or restric- tion upon inter-state or foreign commerce which is not necessarily involved in the prevention of the evil against which the law is directed (a). In the case of Mobile v. KiTnhall (h) Mr. Justice Field uses language which clearly implies that the silence of Congress is not in any case to be regarded as prohibiting the States from adopting any measures to prevent immediate danger to their citizens. " Buoys and beacons," he says, " are important aids, and sometimes are essential to the safe navigation of vessels, in indicating the channel to be followed at the entrance of harbours and in rivers, and their establishment by Congress is undoubtedly within its commercial power. But it would be extend- ing that power to the exclusion of State authority to an unreasonable degree to hold that whilst it remained unexercised upon this subject, it would be unlawful for a State to provide the buoys and beacons required for the safe navigation of its harbours and rivers, and in case of their destruction by storms, or otherwise, it could not temporarily supply their places until (a) Smith v. Turner, 7 How., 283. (h) 100 U.S., 82. POLICE POWER OP THE STATES. 147 Congress could act in the matter and provide for their re-establishment. That power which every State possesses, sometimes termed its police power, by which it legislates for the protection of the lives, health, and property of its people, would justify measures of this kind." This power of self -protection is recognised by the The police -El T 1 1 . , power is a part Jinglish common law as inherent in the community <>' '^e common •^ law. and as supreme over every legal restriction which is imposed upon its governmental organs or upon its separate members in ordinary circumstances. It was said in The Saltpetre Case (a) :■ — " For the Common- wealth a man shall suffer damage ; as for saving a city or a town, a house shall be pulled down if the next be on fire ; and the suburbs of a city in time of war shall be plucked down ; and a thing for the Commonwealth every man may do without being liable for an action as it is said in 3 Henry VIII., fol. 15 ; and in this case the rule is true, Princeps et respublica ex justa causa possunt rem meam auferre." In a case which occurred in the State of New York, a building containing a number of small apartments, which were occupied by lodgers whose filthy habits threatened to breed infection and in- crease the ravages of Asiatic cholera, was pulled down by a number of residents of the neighbourhood who failed to produce sufEcient evidence of the authority of the Board of Health under which they alleged that they had acted. But the Court said that the authority was not necessary to justify them, and that the legislation which authorised sheriffs or magistrates or other officers to pull dowm buildings in order to prevent the spread of a conflagration rested on the right of self-defence (a) 12 Coke, 12. 148 FEDERAL POWER OVER COMMERCE AND existent in the community, and simply regulated the exercise of it, and that individuals might in cases of necessity exercise it on behalf of the community with- out legislative authority (a). " Such cases depend on the right of the Commonwealth as an organic whole, and of individuals acting on her behalf, to do whatever is indispensable for the protection of life, liberty and property, which is known in peace as the police power, and designated in war as martial law " (b). Therefore if the absence of sufficient legislation by the Parliament of the Commonwealth in respect of any matter within its jurisdiction produces immediate or imminent danger to the inhabitants of a State, the Parliament of the State may do all that is necessary to avert the danger. It cannot be doubted that, in the exercise of its legislative power over inter-state commerce, the Parliament of the Commonwealth may enact laws which require all persons who are in charge of loco- motive engines, upon railway trains which are engaged in inter-state commerce, to be examined as to their qualifications for the position and to obtain certificates of their competency, and may enact similar laws for the examination of engineers in charge of the machinery of river steamers trading between two or more States. But if the Parliament of the Commonwealth fails to enact any legislation of that description, the Parliament of a State may enact a law requiring every person in charge of a locomotive engine, or of the machinery of a river steamer running into or through the State from another State, to be examined and to carry a certificate of his competency, in order to protect the residents of the State from danger in consequence of the unskilful (a) Meeker V. Van Rensselaer, 15 Wend., 397. (6) Hare's American Conatitutional Law, vol. 2, pp. 907-8. POLICE POWER OF THE STATES. 149 conduct of any such person. This question came before the Supreme Court of the United States in the two cases of Smith v. Alabama (a) and Nashville- &g. By. Co. V. Alabama (b), and the right of the State to enact such laws was affirmed in both cases. In delivering judgment in the last-named case Mr. Justice Field said : — " It is conceded that the power of Congress to regu- late inter-state commerce is plenary ; that, as incident to it, Congress may legislate as to the qualifications, duties and liabilities of employes and others on railway trains engaged in that commerce ; and that such legis- lation will supersede any State action on the subject. But until such legislation is had, .it is clearly within the competency of the States to provide against acci- dents on trains whilst within their limits. Indeed, it is a principle fully recognised by decisions of State and Federal Courts, that wherever there is any business in which, either from the products created or the instru- mentalities used, there is danger to life or property/, it is not only within the power of the States, but it is among their plain duties to make provision against accidents likely to follow in such business so that the dangers attending it may be guarded against as far as practicable." In the case of Smith v. Alabama the character of such laws in relation to the legislative power of Congress over inter-state commerce is well stated by Mr. Justice Matthews, who, in delivering the judgment of the Court, said : — " In conclusion, we find, therefore, first, that the statute of Alabama the validity of which is under consideration, is not, considered in its .own nature, a regulation of inter-state commerce, even when applied as in the case under consideration ; (a) 124 U.S., 469. (b) 128 U.S., 96. 150 FEDERAL POWER OVER (JOMMERCE AND secondly, that it is properly an act of legislation within the scope of the admitted power reserved to the State to regulate the relative rights and duties of persons being and acting within its territorial juris- diction, intended to operate so as to secure for the public safety of person and property ; and thirdly, that, so far as it affects transactions of commerce among the States, it does so only indirectlj-, incidentally, and remotely, and not so as to burden or impede them, and, in the particulars in which it touches those transactions at all, it is not in conflict with any express enactment of Congress on the subject, nor contrary to any intention of Congress to be presumed from its silence." Upon the same ground the legis- lation of a State requiring all boats to expose certain lights while riding at anchor in the ports and harbours of the State has been sustained as valid (a). And a State may enact regulations for the safe anchorage and mooring of vessels so as to prevent accidents and collisions. " The authority for establishing regulations of this character is found in the right and duty of the supreme power of the State to provide for the safety, convenient use and undisturbed enjoyment of property within its limits; and charges incurred in enforcing these regulations may properly be considered as compensation for the facilities thus furnished to the vessels " (b). But where no services are rendered no charges can be made (c). may^mpo"^ In conncctiou with the question of the power of a ee^oll*"' state to demand fees for services rendered in the rendered in the exercise of its ' police power. („) j^g James Gray v. The Ship John Frazer, 21 How., 184; Sherlock v. Ailing, 93 U.S., 99. (6) Gloucester Ferry Co. v. Pennslyvania, 114 U.S., 196-214. (c) Steamship Co. v. Port Wardens, 6 Wall., 31. POLICE POWER OP THE STATES. 151 execution of regulations made for the purpose of securing the safety of vessels in its ports and harbours and affording facilities for the discharge of cargoes, &c., some reference may seem to be required to be made to the statement, previously made in this chapter, that although a State may erect lighthouses and beacons, &c., it cannot impose any charges for the benefits derived from them, because such charges would be a burden upon inter-state and foreign commerce. The distinction between such charges and the fees which a State may demand and collect, in the exercise of its police power, in respect of the use of its ports and harbours, is that charges levied upon vessels for the maintenance of lighthouses and beacons, &c., erected by the State would be practically and substantially taxes levied upon vessels for the privilege of coming into the harbours and ports of the State, and would therefore be taxes upon maritime intercourse between the State and other States and with other countries ; whereas the fees charged in connection with the execution of port regulations are charges levied for services rendered to vessels after they have come into the State and have become subject to its local jurisdic- tion over all persons and property within its boundaries. In the United States of America the separate States may obtain the consent of Congress, under the second and third clauses of the tenth section of Article I. of the Constitution, to levy taxes upon imports and exports, and upon the tonnage of vessels ; and many of the States have at different times obtained the consent of Congress to the imposition of such taxes for the special purpose of providing funds for the improvement of harbours and the erection of lighthouses, &c. (a). There (a) In a letter written by Madison to Professor Davis in the year 152 FEDERAL POWER OVER COMMERCE. is not any provision in the Constitution of the Com- monwealth of Australia under which a State may obtain the consent of the Parliament of the Common- wealth for the imposition of taxes upon the tonnage or cargoes of vessels for such purposes. Section 112 expressly empowers a State to levy upon imports and exports such charges only as may be necessary for the execution of its inspection laws ; and it expressly declares that all such charges shall be for the use of the Commonwealth, and that any such inspection laws may be annulled by the Parliament of the Common- wealth. The language of the section is partially similar to that of the second clause of the tenth section of Article I. of the Constitution of the United States, but it does not provide for a State obtaining the con- sent of the Parliament of the Commonwealth to the imposition of a tax by the State. 1832, he says : — "It appears from the laws of the United States, that beginning with the year 1790, and previous to the year 1815, the consent of Congress, on applications from Massachusetts, Rhode Island, Pennsylvania, Maryland, Virginia, South Carolina and Georgia, was, in pursuance of the tenth section, article one of the Constitution, granted or renewed, in not less than twenty instances, for State duties, to defray the expense of cleaning out harbours or rivers, erecting piers or lighthouses, or appointing health officers. . ." (Writings of James iladison, vol. 4, pages 254-5). [153] 8, THE JUDICIAL POWER OF THE COMMONWEALTH. Section 71 of the Constitution of the Common- f"??^'"" °* ti^S judicial power of wealth declares that:— welPC"""' " The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction." The declaration of the location of the judicial power of the Commonwealth is made in the same form of language as that employed in section 1 in regard to the location of the legislative power exercisable under the Constitution. In both cases the language used is in the future tense, viz., " shall be vested." But with respect to the location of the executive power of the Commonwealth, the language used is in the present tense. Section 61 declares that : — " The executive power of the Commonwealth is vested in the Queen and is exercisable by 134 JUDICIAL POWER OF THE COMMONWEALTH. the Governor-General as the Queen's represen- tative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." The reason for the change in the form of the lan- guage used in section 61 is that the Commonwealth being a portion of the British Empire, all executive power exercisable in it is inherent in the Crown, and would have been exercisable by the representative of the Crown in the Commonwealth without any declara- tion to that effect in the Constitution. But the depositary of the legislative power of the Common- wealth and the organs of its judicial power were not in existence when the Constitution was framed ; and the use of the future form of language in reference to the location of the judicial power does not imply that it was to be called into existence by any exercise of Imperial authority, whether legislative or executive in its nature, subsequently to the establishment of the Common^E^h, any more tiafcn the use of the same form of language in reference^O the klcation of the legislative poweV|Of the Cap imcfnwealtfa implies that it was to be couf enSBd ^l^fpoirltitoe Pafliament after the Parliament Jiad beenkj elected. The legislative power of the Parliament; n • , , ,ii liability of the Vide tor the payment or the interest upon the trans- ferred debts or for their redemption, the transferred debts will thereby become debts of the Commonwealth, and the interest upon them will be payable by the Com- monwealth out of its own revenues as a part of its own expenditure for its own purposes. The Parliament of the Commonwealth has unrestricted power to borrow Result of the assumption of (a) 4 Wheat., 316. FINANCIAL ASSISTANCE TO THE STATES. 223 money on the public credit of the Commonwealth " for the peace, order and good government of the Common- wealth," and the Parliament is the sole judge of when and in what manner " the peace, order and good gov- ernment of the Commonwealth " require the exercise of any substantive power conferred upon the Parliament by the Constitution. The general welfare and pros- perity of the whole Commonwealth must be affected by the prosperity or financial distress of each of the States, and if the transfer of the whole or a part of the debt of each State will relieve the States or any of them from imminent financial embarrassment, the immediate benefit to them will certainly produce an ultimate benefit to the Commonwealth. If financial embarrassment comes to any State in consequence of the surrender of its power to raise revenue by duties of customs and excise, the establishment of the Common- wealth will be the cause of the embarrassment, and the financial resources of the Commonwealth would be leg- itimately used to provide any remedy which is within the legislative power of the Commonwealth. Any difficulty about the directions contained in sections 89 and 93 of the Constitution in regard to the dis- tribution of three-fourths of the revenue collected by the Commonwealth from duties of customs and excise during the first ten years after the establishment of. the Commonwealth could be legally obviated by uniform legislation of the several States by which each State would relinquish its claim under those sections in return for the transfer of its debts to the Common- wealth. If the transfer of the debts of the States to the Copimonwealth is postponed until the expiration of the first ten years after the establishment of the Commonwealth, no legislation by the States would be 224 POWERS OF THE PARLIAMENT TO GRANT required, because their claims under sections 89 and 93 would have terminated. tteT&uhe The Constitution,^^e United States of America states of the t i_ j_ * ' • • £ i.i i-n American Union docs uot Contain any provision tor the assumption of the debts of the States by the United States, nor any provision vs^hich directly empowers Congress to grant financial assistance to any State. Nevertheless the debts incurred by the several original States in the War of Independence were taken over by the United States within two years after the adoption of the Con- stitution by the States ; and in the year 1843 a select committee reported to Congress in favour of an assumption of the subsequent debts of the States by the Federal Government, but the proposal was re- jected in consequence of the opposition of the non- indebted States. The grounds upon which the report of the select committee justified its proposal as one within the power of Congress under its authority to " provide for the common defence and general welfare of the United States " was that the larger part of the ■ contemporary debts of the States had been contracted to construct public works, and that these public works were " calculated to strengthen the bonds of union, multiply the avenues of commerce, and augment the defences from foreign aggression." In regard to the debts of the States which were assumed by the Federal Government immediately after the establishment of the Constitution the following observations taken from Bolles' Financial History of the United States {a) set forth very clearly the grounds upon which the assumption was made. " Obvious justice required the assumption of all the debts thus {a) Vol. 2, p. 36. FINANCIAL ASSISTANCE TO THE STATES. contracted. Congress, under the Confederation, had repeated! J' promised to do full justice to all the creditors and States ; and their successors had no right to re- pudiate the promise. The assumption of the claims of State creditors, to whom compensation was due for their efforts in aiding the common cause against Great Britain, was not so much an act of expediency as an act of open and express obligation. There was no honest way of escaping the fulfilment of it. Moreover, the States had granted the exclusive right to the gov- ernment of collecting a revenue on imports, which was the richest source of public revenue. When the States relinquished the right of levying this tax, they expected that the Government would relieve them from their obligations incurred for the general welfare. To appropriate the richest fountains of taxation belonging to the States, and refuse the assumption ^of their war obligations, was harsh treatment and just ground for resentment." [226] 12. THE POWER OF THE CROWN TO APPOINT COMMISSIONS OF INQUIRY. The case of the Coiniiiission appouited to investigate the affairs of the Bank of Van Dieinen's Land, Tasmania, In the year 1888 an Act was passed by the Parliament of Tasmania by whicli Commissioners appointed by Letters Patent of the Governor to make any inquiry were empowered to summon witnesses and to adrain- ister oaths to them and to demand the production of books and documents. In the year 1892 a Commission of four persons was appointed by Letters Patent of the Governor to make inquiry into the affairs of the Bank of Van Diemen's Land, then in liquidation, and to make a report in writing of their proceedings and their discoveries concerning the said Bank and its affairs. After the Commissioners had held two sittings they were served with a notice that an application had been made that day to the Chief Justice in chambers on behalf of the defendant in an action then pending in the Supreme Court for an order restraining the Com- missioners from compelling witnesses to appear before them or to proceed any further in their inquiry into the affairs of the said Bank or publishing any report of their proceedings pending the trial of the action, COMMISSIONS OF INQUIRY. 227 and that the Chief Justice had adjourned the further hearing of the application until the following day, and had ordered a notice of application to be served on the Commissioners. The hearing of the application was resumed on the following day and, after argument, was further adjourned sine die to enable the Attorney- General to appear for the Crown, upon the undertaking of the counsel for the Crown that the sittings of the Commissioners would be suspended in the meantime. The action in connection with which the application was made to the court was shortly afterwards settled, and the Commissioners resumed their sittings and com- pleted their investigations of the affairs of the Bank and made a report in writing of their proceedings and discoveries to the Governor as directed. The defendant (Pearce) had been a director of the Bank of Van Diemen's Land, and the action against him was com- menced by the plaintiff (Williams) to obtain compensa- tion for loss sustained by him by the purchase of a number of shares in the Bank on the faith of a balance- sheet signed by the defendant and which was alleged to contain false statements. The published reports of the proceedings which took place in connection with the application for the restrain- ing order disclose that it was applied for on the ground that the inquiry which the Commissioners had been directed to make was substantially the same as that which would be made on the trial of the action above mentioned, and that any previous investigation made by the Commissioners would be an interference with the ordinary administration of justice, because it would be calculated to prejudice and damage the defendant in that action, and would therefore be a contempt of court. •328 POWER OF CROWN TO APPOINT In the course of the argument upon the hearing of the application for the restraining order, the Chief Justice seemed to be of opinion that the publication of the report of the Commissioners would be a contempt of court so far as it contained any allegations or included any statements made by witnesses in reference to matters that would be necessarily investigated in the course of the trial of the action then pending in the court. If the action Williams v. Pearce had been continued up to trial the jury would have been required to decide two questions, (1) Were the report and the balance-sheet published by the directors of the bank to the meeting of shareholders held on the 9th of July, 1891, true or false ? (2) If that report and the balance-sheet accompanying it were false, did the defendant concur in the making or the publishing of them knowing them to be false? So far as the defend- ant would be affected by the final result of the trial, the second question was the essential and all-important one, and the first would have to be decided only as a necessary preliminary inquiry for the decision of the second. The report and the balance-sheet might both be false and fraudulent in every statement and item contained in them ; but if the defendant did not have any share in the making or the publishing of them, or if, while concurring or taking part in the publication of them he was totally ignorant of the falsity of them, he would not incur any liability, and would be entitled to a verdict in his favour, notwithstanding that he was the chairman of directors at the time the report and balance-sheet were prepared, and in that capacity had attended the meeting of shareholders at which those COMMISSIONS OP INQUIRY. 229 documents were published, and had moved the resolu- tion adopting them (a). It was erroneously stated by the counsel who appeared ^fr^ef^Tj™™^ the for the Crown that the object of the appointment of courts of law. the Commission was to ascertain whether criminal proceedings ought to be instituted against any person in connection with the management of the Bank. There is nothing in the Act of the Parliament of Tas- mania under which the Commissioners were empowered to take evidence on oath that limits or restricts the purposes for, which Commissions of Inquiry may be appointed by the Governor. But the Commissioners were not directed to inquire whether the defendant Pearce or anyone else had prepared or published, or had taken any part in the preparation or publication of the report and balance-sheet in question. The entire scope of the investigation committed to them, as set forth in the words of the document by which they were appointed, was " to ascertain whether the reports, balance-sheets, and profit and loss accounts issued by the directors of the said bank to the shareholders in the month of July, 1890, and in the months of January and July, 1891, correctly represented the true financial condition of the said Bank of Van Diemen's Land, Limited, on the dates to which such reports, balance- sheets, and profit and loss accounts refer respectively." These words do not include any inquiry into the civil or criminal liability of any person, and therefore the appointment of the Commission was not the erection of a new tribunal to perform the functions of the courts already established by law to declare the guilt or innocence of persons charged with offences. None (a) See In re Denham and Co., L.R. 25, Ch. Div., p. 752. 230 POWER OF CROWN TO APPOINT of those courts has jurisdiction to investigate any , matter unless the determination of the civil or criminal rights or liability of some person is involved in its decision, and therefore the restricted and non-judicial inquiry which the Commissioners were directed to make was one which none of those courts was competent to execute. The counsel who appeared before the Chief Justice to apply for the order restraining the Com- missioners from performing the task assigned to them freely admitted that the Supreme Court could not restrain the Crown from appointing a Commission of Inquiry under the royal prerogative, but supported his application for the restraining order on the ground that if individuals, although armed with authority from the Crown, did illegal acts which interfered with the proper administration of justice, the court would restrain, and, if necessary, punish them. This pertinent proposition, in which every competent lawyer would readily concur, would at all times constitute an ample and all-sufficient argument for granting such an order as that which was applied for on behalf of the defendant Pearce, if the task assigned by the Crown to the person8 whom it was sought to restrain from executing it truly included anything illegal and prejudicial to the proper performance of its functions by any judicial tribunal. But it is not to be assumed that any person appointed by the Crown in the exercise of its prerogative to make an inquiry will perform the task imposed upon him in an illegal manner. Contempt of It is, of course, evident that no question of interfer- court ; what constitutes it. g^ce with the due administration of justice could be raised in regard to the investigations made by any Commission of Inquiry appointed by the Crown except in the contingency of a case pending in COMMISSIONS OF INQUIRY. 231 one of the courts, and involving an investigation of one or more of the same matters embraced in the scope of the inquiry enti'usted to the Commission ; and it is only when interference with the ordinary course of justice is a contempt of court that the courts can exercise their summary jurisdiction to restrain or punish it. The disclosure of particular facts in the course of one judicial proceeding may lead to the defeat of the proper administration of justice in another proceeding ; and in order to prevent, as far as possible, any such n result, the publication in the press of the evidence taken j_- in a series of trials has frequently been prohibited by the courts until all the trials have been concluded. But the witnesses who gave the evidence taken in the first trial are not guilty of any contempt because the attorneys and counsel engaged in it, and who hear that evidence, make use of the knowledge so gained by them for the benefit of their clients in the subsequent trials. Nor can the attorneys and counsel in such cases be restrained from making such use of the know- ledge gained by them in such circumstances, or be punished for so using it. In any circumstances con- tempt of court must include conduct coming within one of the following descriptions, viz. — (1) direct inter- ference with the proceedings of the court; (2) inter- ference with a judge or any ofiicer of the court, or with a juror or witness or a party to a suit; (3) disregard or disobedience of any order or summons or other pro- cess of the court ; (4) publication of any matter derogatory to the court or to any judge or officer of the court ; (5) publication of any matter calculated or intended to influence the mind of a judge or of any other ofiicer of the court, or the mind of any juror or witness, in reference to anj' case pending in the court. 232 POWER OF CROWN TO APPOINT Therefore the Commissioners appointed to investigate the books of the Bank of Van Diemen's Land could not have been guiltj' of any contempt of court in mak- ing the inquiry committed to them so long as they did not publish any information obtained by them in the course of their labours, or any opinion or observations upon such information. All the reported cases of contempt of court not coming within any of the descriptions of conduct that have been numbered (1), (2), and (3) place it beyond dispute that there cannot be any contempt of court outside of those three descriptions of conduct, unless there is a publication of something likely or intended to inter- fere with the regular course of justicfe. It would not be a contempt of court on the part of any person to make use of all lawful methods available to him for the purpose of obtaining a knowledge of the facts in- volved in any judicial question upon which the judg- ment of a court or the verdict of a jury were to be subsequently given, and to form his own opinion in the meantime on the question to be so decided, so long as he did not publish those facts or the opinion he had formed upon them to other persons. It is therefore very evident that, except upon the ground that the knowledge to be obtained by the Commissioners in making their investigation was to be published by them, it could not be pretended that there was any question of contempt of court involved in their pro- ceedings upon which the court would have jurisdiction to interfere with them ; and the Chief Justice evidently felt the difficulty in the way of the Court assuming jurisdiction in regard to the application made to him on behalf of the defendant Pearce when he put forward the proposition that the Commissioners, in sending COMMISSIONS OP INQUIRY. 233 their report to the Governor, would be publishing it. He was also reported to have said that " clerks would copy it, and that was publishing it." As the Commis- sioners could not be responsible for anything done with their report after it had left them, and as the applica- tion then before the Chief Justice was confined to the Commissioners, it is to be presumed that when he spoke of clerks copying the report he meant clerks employed by the Commissioners to make a fair copy of their draft report for perusal by the Governor, and to transcribe the evidence to be attached to the report. But he declined to give a final opinion on the applica- tion made to him, and expressed a wish that the matter should be discussed by the Full Court, and it is difficult to believe that the Full Court would have come to the conclusion that either the employment of clerks by the Commissioners to copy their 'ti.raft report and to tran- scribe the evidence to be attached to it, or the subse- quent transmission of the report and the evidence to the Governor, would be such a publication of those documents as would give the court jurisdiction to regard it as a contempt upon the application then before him. One very serious consequence of a contrary decision by the Full Court would be that the work of every Royal Commission thereafter appoin- ted to make any inquiry by which particular persons might be so affected as to make them desirous of baffling it could be delayed for an indefinite period, and ultimately made useless, by a series of collusive actions abandoned before trial. The 5th section of the Act of the Parliament of Tasmania (a), which regulates the taking of evidence by Commissioners, dis- (a) 52 Viot. No. 5J6. 234 POWER OF GROWN TO APPOINT tinctly contemplates the examination of witnesses upon matters which may subsequently become subjects of investigation in either a civil or criminal proceeding in a court of law ; and the whole purport of that Act, / as well as the prerogative right of the Crown to appoint I Commissions of Inquiry, might be practically frustrated in the manner indicated if the transcription by clerks of the evidence taken by Commissioners and the trans- mission of that evidence and the Commissioners' report to the Governor could be held to be such a publication of them as might become a contempt of court. A conse- quence so serious might well make the Supreme Court pause before committing itself to a decision from which the only consistent inference to be drawn as to the ultimate reason for it would be that the court assumed that the Crown itself intended to obstruct the course of justice by the publication of the evidence taken by the Commissioners and their report upon it. But we know that the court will not make any assumption derogatory to the honor and dignity of the Crown ; and the only other reason that could be given for restraining the Commissioners from proceeding with their investigation would be that they or their secretary or clerks intended or would be induced to improperly and disobediently publish the result of it. Here, again, the conclusive answer to such a supposition is that the court will not assume a wrongful intention or a culpable weakness on the part of any person. There is also direct judicial authority that the employment of clerks or printers to make written or printed copies of documents containing statements relating to a pend- ing lawsuit is not such a publication of them as can be regarded as a contempt of court. Nearly every brief prepared in a solicitor's office for counsel is of such a COMMISSIONS OF INQUIRY. 235 character that if it were published as a pamplilet, or as an advertisement in a newspaper, with a view of influencing the judge or the jury at the trial, the person so publishing it would be held to be guilty of a contempt of court ; and such briefs are daily copied by numerous clerks, and are frequently sent out to typewriters and law stationers for transcription. The proposition that such a practice is punishable as a contempt of court only requires to be stated to show its untenability. In the case of the printers of The Champion and St. James Gazette, reported in 2 Atkyns, p. 487, Lord Chancellor Hardwieke mentioned a case in which one of the parties, previous to the trial, had printed and published the brief prepared for his counsel and had been adjudged guilty of contempt of court for doing it. In referring to that case. Lord Hardwieke clearly recognised the distinction between such a publication to the world at large and the supply of the manuscript to the printer and his workmen for the limited purpose of making printed copies for the use of the counsel. " The offence," said he, " did not consist in printing, for a man may give a printed btief as well as a written one to counsel ; but the contempt of this court weis prejudicing the world with regard to the merits of the cause before it was heard." In the case of Plating Company v. Farquharson {a) it was decided that the insertion of an advertisement in a newspaper asking for evidence in a suit then pending in the court and offering a reward for it was not a contempt of court. Such an advertisement could not have any result without an exchange of communications upon the question involved in the suit, and these com- munications might be contained in letters or other (a) Law Reports, Chancery Division, vol. xvii., p. 49. 236 POWER OF CROWN TO APPOINT documents copied by numerous clerks. The publica- tion of these to the world at large would doubtless be a contempt of court, but so long as they were used only in a private manner no contempt would be committed. The decision in this case, therefore, confirms that of Lord Hardwicke in reference to the printing of a brief for counsel, and is another judicial authoritj^ against the doctrine that the copying by clerks of the evidence taken by the Commissioners would be such a publication of it as might become a contempt of court. ri^ht'ofthi'"'™ The Act of the Parliament of Tasmania (a) which appointcom- empowers Commissioners to take evidence on oath missions of , ■■ . j.- • i i. j_i j i> Inquiry. Clearly recognises a prerogative right on the part or the Crown to appoint Commissions of Inquiry for some purposes, and it does not purport to confer any new right of that description or to enlarge any existing one. That the Crown has a prerogative right to appoint Commissions of Inquiry for any purpose not contrary to positive law or to constitutional principles and practice is beyond dispute. The existence of that right has been recognised and its exercise approved and invoked by Parliament in innumerable instances during the last two centuries. But in every instance in which the Crown has appointed a Commission of Inquiry by which vested interests might be affected, or which was a preliminary step to legislation on a subject in regard to which there was a strong difier- ence of opinion in the country, opponents of the Inquiry in Parliament and in the press have denounced the appointment of the Commission as unconstitutional, and as a disguised attempt to accomplish an object not (a) 52 Vict. No. 26. COMMISSIONS OF INQUIRY. 237 authorised by law. Two notable examples of this line of conduct by opponents occurred in reference to the ap- pointment of the Royal Commission of 1833, to inquire into the working of Municipal Corporations in England, and the appointment of the Royal Commission of 1860 to inquire into the discipline, studies, and revenues of the University and Colleges of Oxford. In both in- stances adverse opinions on the legalitj'- of such Cora- missions were obtained from eminent lawyers by the opponents of the Inquiry, and among the adverse opinions upon the legality of the Corporations Com- mission of 1833 was one obtained by the Merchant Tailors Company from Sir James Scarlett, which was published in the Annual Register of the same year {a). A perusal of that opinion shows that the fundamental objection which its author had to urge against the last-mentioned Commission was that it purported to confer on the Commissioners compulsory powers of disclosure which the Crown had not authority to impart to them. He also declared the Commission to be illegal, because it purported to authorise an inquiry outside of the regular course of law into the manner in which private property was held and en- joyed. An adverse opinion on the legality of the University Commission of 1850 was given on behalf of the University of Oxford by Sir G. J. Turner and Messrs. Bethell, Keating, and Bramwell. These eminent lawyers condemned that Commission on the same grounds on which Sir James Scarlett had condemned the Corporations Commission of 1833. But the Law Officers of the Crown, Sir J. Dodson, Sir A. E. Cock- burn, and Sir W. P. Wood, defended the legality of the (a) p. 158. 238 POWER OF CROWN TO APPOINT University Commission against the attacks of the advisers of the University of Oxford ; and the resolu- tions of the judges in the case of a Commission appointed in the year 1608 to inquire into the depopulation of Bedfordshire, and reported under the head of " Com- missions of Inquiry " in Lord Coke's Reports (a), were quoted by the counsel on both sides in support of their respective opinions. These appeals to the same author- ity in support and in condemnation of the University Commission of 1850 led to a critical examination in the Law Magazine for August, 1851, of the resolutions to which such contrary interpretations had been given, with the result that one important portion of the Eeport in which they are contained was proved to be mani- festly corrupt, and, in its uncorrected state, nonsensical. The emendations suggested by the reviewer were in favour of the legality of the Commission, but the ob- jections reported by Lord Coke as having been made by the judges to the particular Commission mentioned in the Report remained intact. The first and second of those objections — viz., (1) that the Commission was in the English language, and (2) that the subjects of the inquiry were not stated in the body of the Commis- sion, but in an appended schedule — ^would, of course, be dismissed without discussion at the present day. But the third objection is substantially the same as that which has been urged against many Commissions of Inquiry which have been appointed in later times — viz., that all kinds of false accusations and slanderous statements may be made against innocent persons by the witnesses who give evidence before the Com- missioners, and the persons injured will have no (a) 12 Coke, 31. COMMISSIONS OF INQUIRY. 239 remedy, because the witnesses not being examined on oath in a judicial proceeding cannot be prosecuted for perjury, and are protected against civil actions for slander, because the statements made by them to the Commissioners are privileged. This objection, which lias always been recognised as a formidable one to many Commissions of Inquiry appointed in England, and the objection raised by Sir James Scarlett to the Corporations Commission of 1833 — viz., that it pur- ported to invest the Commissioners with compulsory powers of disclosure which the Grown had no authority to confer on them — have no validity in Tasmania since the passing of the Act 52 Vict. No. 26, which author- ises Commissioners to compel the attendance of wit- nesses and the production of documents, and to take evidence on oath, and provides that every person ex- amined under a Commission " shall liave the same protection and be subject to the same liabilities in any civil or criminal proceedings as any person giving evidence in any case tried in the Supreme Court." Those objections cannot therefore be made against the Commission which was appointed to investigate the books of the Bank of Van Diemen's Land, because it was appointed subsequent to the passing of that Act. Nor is the other objection raised by Sir James Scarlett against the Corporations Commission of 1833 — viz., that it purported to authorise an inquiry into the manner in which private property was held and en- joyed — available against the Commission which was appointed to investigate the books of the Bank, because no attempt was made to confer any such authority upon it. The only other objection that remains for considera- tion is, that the substantial purpose of the Coumiission 240 POWER OF CROWN TO APPOINT was to ascertain whether a crime had been committed and that the appointment of a Commission for such a purpose is unconstitutional and unsupported by any precedent since the revolution of 1688. The assertion of the absence of precedents will be found to be erron- eous. A number of Commissions have been appointed in England at different times within the last hundred years to inquire whether supposed crimes had been com- mitted. It is, however, alleged that the last-stated objection, like those which have been already considered, is supported by the venerable authority of Lord Coke, who, after stating the resolutions of the judges contain- ing the other objections to Commissions of Inquiry, adds, " and no such Commission ever was seen to inquire only " i.e. of crimes. It is around these words that the controversy regarding the legality of a large number of the Commissions appointed in England has revolved. The disputants on one side have always maintained that the words of Lord Coke condemn every Commission of Inquiry the object of which is to ascertain whether a crime has been committed, notwithstanding that there may be no direction in it to inquire as to the person by whom the crime was committed. The disputants on the other side argue that the Com- missions condemned by Lord Coke were such as were directed to the discovery of the persons who had perpetrated particular crimes, and that such Commis- sions are illegal, because they purported to authorise the performance by an irregular tribunal of one of the fundamental functions of the regular courts of law, viz., to determine the question of the guilt or innocence of accused persons. It is evident that Lord Coke could not have intended to make the unqualified statement that an inquiry into the circumstances COMMISSIONS OF INQUIRY. 241 attending a supposed crime, without a previous or simultaneous accusation of any person,, and a con- current investigation of the accused person's guilt or innocence, was unknown to the law of England, because the ofBce of Coroner had existed in England for a period exceeding four centuries before Lord Coke wrote, and had substantially the same duties attached to it that belong to it at the present day; and the origin of the office in many parts of the kingdom was a Charter from the Crown, granted by virtue of its prerogative right to create franchises and corporations. But whatever may be the correct interpretation of Lord Coke's language, and notwithstanding repeated appeals to it in the British Parliament as an authority con- demnatory of Commissions appointed to inquire into alleged offences, we find that a succession of Commis- sions to inquire into the circumstances attending alleged or supposed crimes have been appointed in England under the immediate advice and approval of some of the most eminent Lord Chancellors and judges who have sat upon the Bench in that country. It therefore appears that, if Lord Coke's dictum includes sUch Commissions, his words have not been regarded by some of the highest exponents of the law of England in recent times as containing a correct -statement of that law on this subject. In the year 1806 a Royal Commission, consisting of Royai com- J •' " mission of 1806. Lord Chancellor Erskine, Lord EUenborough (Chief Justice), Lord Grenville and Earl Spencer, was ap- pointed to investigate charges of adultery and infanti- cide which had been made against the Princess of Wales. The Solicitor-General (Sir Samuel Eomilly), was appointed Secretary to the Commission, and in 242 POWER OF CROWN TO APPOINT that capacity took down the evidence. The Commis- sioners examined a number of witnesses and reported to the King that they were of opinion that the Prin- cess was innocent of the charges which had been made against her. Seven years afterwards the proceedings of the Commission were made the subject of debate in both Houses of Parliament, but the legality of the Commission was not challenged in either House (a). Half a century later Lord Campbell referred at some length to the matter in his Life of Lord Ellenborough (6), and challenged an assertion made by Lord Ellenborough of his right to put leading questions to witnesses on such an inquiry; but he gives no indication that the legality of the Commission was ever questioned ; and it would be something very remarkable if a Lord Chancellor and a Chief Justice of England in the nine- teenth century had consented to be members of an illegal Commission, and a lawyer of the attainments of Sir Samuel Komilly, and holding tlie responsible position of Solicitor-General, had allowed himself to act as Secretary to it; and that another Lord Chancellor, referring pointedly to the matter fifty years after- wards in a critical biography of that Chief Justice written shortly after the long controversy in Parlia- ment and the press on the legality of the University Commission of 1850, should omit to notice the illegality of the earlier Commission to which he was referring. The unhappy condition of Ireland has necessitated the appointment of many Commissions to investigate Commissions appointed to investigate circumstances perpetration^ the circumstauces attending the perpetration of out- of crimes in , . . , t • i i j • i Ireland. ragcs and crimes in that country during the last sixty (a) See Hansard, vol. 25, pp. 142-224. (6) Lives of the Ohief Justices, vol. IV., pp. 267-272. COMMISSIONS OF INQUIRY. 243 years, and several of them have been made the subjects of lengthy debates in the British Parliament, in which their legality has been fully discussed. One of those debates took place in the House of Lords in the year 1850 upon the appointment of a Commission in the preceding year to investigate an affray that occurred at a place called Dolly's Brae (a). The inquiry made in that instance led to the dismissal of the Earl of Roden from the magistracy of Ireland, and Lord Stanley brought the matter under the notice of the House of Lords, and quoted the opinion of Mr. White- side, who then occupied a prominent position at the Bar in Ireland, that the Commission was illegal. The opinion of Mr. Whiteside was based on the resolutions of the judges contained in Lord Coke's Reports, and on the dictum of Lord Coke himself, which has been already quoted ; and the arguments used bj'' Mr. Whiteside in support of his opinion were substantially a repetition of those contained in the third of those resolutions, viz., that witnesses sworn and examined before the Commissioners could not be prosecuted for perjury, and that such an inquiry permitted the defamation of individuals, who would be without remedy for the wrong done to them. The latter argu- ment derived the most of its force from the fact that the investigation in that instance had been conducted in open Court and had been reported and published in the press. This fact also enabled Lord Stanley to argue that the proceedings of the Commissioners were prejudicial to the administration of justice, and he stated that if the investigation had been conducted privately he would have had less objection to it. (a.) Hansard, vol. 108, pp. 886-968. 244 POWER OF CROWN TO APPOINT In the year 1864 a Royal Commission was appointed to inquire into the riots that occurred in that year in Belfast ; and in the following year a lengthy and animated debate took place upon the subject in the House of Commons. The legality of the Commission was attacked by Sir Hugh Cairns and by Mr. White- side, whose opinion on the illegality of the Commission to investigate the affray at Dolly's Brae in 1849 had been quoted by Lord Stanley in the House of Lords, and who since then had become a member of the House of Commons. Both these learned gentlemen quoted Lord Coke's Reports in support of their im- peachment of the Commission, and their arguments against it were — (1) that the Commissioners had no power to administer an oath, and that they examined witnesses in open court without that safeguard ; (2) that the unreliable evidence so obtained was published in the press while a number of persons implicated in the riots were awaiting trial, and was therefore an obstruction to the course of justice by the influence it would exert on the minds of witnesses and jurors (a). It is manifest that the objections urged by Lord Stanley and Sir Hugh Cairns and Mr. Whiteside against the legality of .the two last-mentioned Com- missions cannot apply to the proceedings of the Com- missioners appointed to investigate the books of the Bank of Van Diemen's Land, because those proceedings were strictly private, and were conducted under the provisions of the Tasmanian Act 52 Vict. No. 26. It is therefore scarcely necessary to refer to the able reply made by the Home Secretary, Sir George Grey, to the speeches of Sir Hugh Cairns and Mr. Whiteside ; (a) Hansard, vol. 177, pp. 328-409. COMMISSIONS OF INQUIRY. 245 but attention may be called to the two instances men- commissions •^ appointed to m- tioned by him in wliich similar Commissions to that ckoumstances impugned by his opponents were appointed to inquire aiiJgedcnmes into disturbances that took place in England. One of '" "^''" ' the instances was that in which a Commission was appointed to inquire into the conduct of magistrates at Birmingham. The other instance was that in which a Commission was appointed to inquire into the com- plaints made of the use of unnecessary violence by the police in suppressing disturbances in Hyde Park, and which led to the prosecution of several constables. These two instances of the appointment of Commissions to inquire into alleged offences in England prove that the use of such Commissions is no part of an ex- ceptional and arbitrary system of Government adopted for the peculiar condition of Ireland, but has always been regarded by Ministers of the Crown in England as a lawful exercise of the Crown's prerogative when- ever circumstances arose that made it desirable. In the year 1865 the notable Royal Commission of I'orappSd' Inquiry was appointed to investigate the circumstances disturbanc^s'L attending the disturbances which had lately occurred ises. in the Island of Jamaica, and the measures adopted for their suppression. The Legislature of Jamaica passed a special Act empowering the Commissioners to compel the attendance of witnesses and the production of documents, and to take evidence on oath; and the Report of the Commissioners shows that they inquired into the circumstances attending the perpetration of a large number of crimes, including several murders. The Earl of Derby, as leader of the Opposition in the House of Lords, questioned the legality of the Commis- sion on the old ground that the evidence taken by the Commissioners would not have the sanction of an oath, 246 POWER OF CROWN TO APPOINT and would therefore not be reliable, and would prejudice the public mind in England against Governor Eyre, whose conduct had already been challenged and might be made the subject of a judicial investigation. But this objection was totally removed by the above- mentioned Act of the Legislature of Jamaica, and no further challenge of the legality of the Commission was heard in either House of the British Parliament. The provisions of that Act were substantially the same as those of the Tasmanian Act 52 Vict. No. 26. Eoyai commis- The last precedent of an appointment of a Royal to investigate Commissiou to investigate alleged crimes in England alleged outrases ° ° _ _ ° th ^''ear 1867" ^° which it seems necessary to refer is the appointment of the Commission in the year 1867 to investigate the alleged outrages which were said to have been com- mitted in Sheffield and other places under the direction of the Trades Unions. A special Act of Parliament (a) was passed to enable the members of that Com- mission to compel the attendance of witnesses and the production of documents, and to take evidence on oath, and this fact has created the erroneous impression on the minds of some persons that the Commission was appointed by virtue of that Act, and was not a Eoyal Commission appointed by the Crown by virtue of its prerogative. A reference to the Act itself and to the debates in the British Parliament will immediately dissipate any such notion. The preamble of the Act recites that " A Commission has been issued by Her Majesty to inquire into and report on the Organisation and Rules of Trades Unions, . . . with power to investigate any recent acts of intimidation, outrage, or wrong alleged to have been promoted, encouraged, or (a) 30 Vio. chap. 8. COMMISSIONS OF INQUIRY. 247 connived at by such Trades Unions, &c.," and it then proceeds to recite " that a case of outrage within the scope of the said Commiasion of Inquiry had been committed at Sheffield," and that representations had been made on behalf of the workmen as well as the employers of labour in that town " that a searching inquiry on oath should be made into the circumstances of such outrage," and that " the powers for the effectual conducting of such inquiry could not be con- ferred without the authority of Parliament." The Act then proceeds to limit the extent of the inquiry, and then confers on the Commissioners the necessary compulsory powers of disclosure, and empowers them to administer oaths and to punish for contempt ; and it provides that every person examined by the Commissioners, who shall make a full disclosure in regard to all matters respecting which he is examined, shall be entitled to a certificate of indemnity against any liability in any subsequent civil or criminal proceedings founded upon the same matters. The prerogative right of the Crown to appoint the Com- mission was distinctly recognised and acknowledged in both Houses of Parliament. In the House of Commons an amendment was proposed that the names of the Commissioners should be inserted in the Bill, whereupon Mr. Roebuck reminded the mover of the amendment that the Bill did not purport to appoint a Commission by the authority of Parliament, but only ' to give special powers to a Commission which had already been appointed by the Crown, and the mover of the amendment withdrew it (a). In the House of Lords the Lord Chancellor (Lord Chelmsford) " re- minded their Lordships that the question before them (a) Hansard, vol. 185, pp. 994-5. 248 POWER OF CROWN TO APPOINT was riot whether a Commission should issue," because " the Commission had already issued, and the question was whether Parliament should give the Commis- sioners certain powers to enable them to discharge the duty entrusted to them " (a). The enactment of that statute was therefore a distinct recognition and confirmation by Parliament of the prerogative right of the Crown to appoint the Commission recited in its preamble, and must be held to have conclusively removed the question from any dependence on such authorities as the case reported by Lord Coke and his observations on it. The powers conferred by that statute on the members of that Commission are exactly the powers conferred on Commissioners generallj' by the Tasmanian Act 52 Vict. No. 26. It is therefore manifest that if there had been an Act similar to the Tasmanian Act on the Statute Book in England at that date the British Parliament would never have been asked to pass any Act relating to that Commission in particular. The special Act passed on that occasion expired when the Commission completed its task, and no general Act confering the same or similar powers upon other Commissions has yet been passed in England. Canadian In the vear 1886 an Act was passed by the Parlia- legislation. ■' _ _ ^ •' _ ment of the Dominion of Canada declaring that " whenever the Governor in Council deems it expedient to cause an inquiry to be made into and concerning any matter connected with the good government of Canada, or the conduct of any part of the public busi- ness thereof, and such inquiry is not regulated by any special law, the Governor in Council may by the Com- . (a) Hanmrd, vol. 185, p. 1440. COMMISSIONS OF INQUIRY. 249 mission in the case confer upon the Commissioners or other persons by whom such inquiry is to be conducted the power of summoning before them any witnesses, and of requiring them to give evidence on oath, orally or in writing, or on solemn affirmation, &c. . . . and to produce such documents and things as such Com- missioners deem requisite to the full investigation of the matters into which they are appointed to examine." Here is a distinct recognition of an inherent power of inquiry in the Crown concurrent with the legislative power vested in the Parliament of the Dominion. The language used in the British North America Act (a) in defining the legislative powers of the Dominion Parliament is " to make laws for the peace, order, and good government of Canada." It cannot be contended that the words " peace " and " order " confer any sub- stantive powers of legislation which are not included in the phrase " good government,'' and therefore the power " to cause inquiry to be made into and concern- ing any matter connected with the good government of Canada " must extend to every matter and to every interest not exempted from its operation by positive law. The language used in the Tasmanian Act (b) is " any inquiry," without the addition of any descriptive or qualifying words whatever, and the use of such un- qualified language imposes upon those who would restrict the Crown's right of inquiry in respect of any matter, the task of producing clear and positive law in support of such restriction. It would be contrary to p™e*r o°/ae^ law if the Crown were to direct an inquiry to be made inq°iSrie3° into any matter of a purely private character, such as the contents of a deed of settlement of private property, / (a) 30 Vio. chap. 3. (6) 52 Vic. No. 26. 250 POWER OF CROWN TO APPOINT or the nature of any secret process used in the manu- j facture oi' any goods made and sold by any private ! person in his ordinary business. But there are many matters that have both a public and a private aspect, j and in regard to which the prerogative right of the Crown to make an inquiry has been repeatedly ad- mitted by the highest authorities on constitutional principles and practice, and in regard to which that right has in some cases been exercised. With respect to such matters it must be remembered that a Select Committee of either House of Parliament does not possess any greater authority than the Crown to make inquiries, and the power of either House to make in- quiries by the medium of Select Committees is dealt with by Todd in his Parliamentary Government in England as being subject to the same constitutional rules that govern the exercise of the prerogative right of inquiry by the Crown. In this connection Todd quotes the statement of Sir Robert Peel that " where Parliament has given peculiar privileges to any body of men, as, for example, banks or railway companies, it has a right to ask that body for information upon points which it deems necessary for the public advan- tage to have generally understood " (a). On a subse- quent occasion Mr. Gladstone said, that a motion of Sir Morton Peto for the appointment of a Select Committee " to enquire into the means adopted by the London, Chatham, and Dover Railway Company for raising the share capital and exercising their borrowing powers under the various Acts of Parliament authorising the construction of the main line and its extensions and branches," although not a motion to which it was desir- able to agree for the purpose the mover of it had in view, (a) Vol. 1, p. 452. COMMISSIONS OF INQUIRY. 251 might nevertheless be justified " on the ground that railway companies solicit special parliamentary powers." The Bank of Van Diemen's Land was one of a class of institutions which are invested with special privileges by the Legislature with a view of creating facilities for trade that will be advantageous to the whole com- munity as well as to the shareholders of those institu- tions. The operations of those institutions are also made subject by the Legislature to special regulations for the protection of the public and the shareholders. The circumstances attending the failure of one of those • institutions to meet its obligations might therefore very properly be made the subject of a Royal Commis- sion of Inquiry. The prerogative right of the Crown to make an commission to " inquire into the inquiry in such a case was distinctly claimed without Bank^o? B^omba challenge in the House of Commons in regard '" ^*''^' to the Bank of Bombay in the year 1868. Upon the failure of that Bank the Secretary of State for India directed the Governor-General of India to appoint a Commission of Inquiry to investigate the circumstances attending the failure of the bank, but it v' was found that the Commissioners would not have power without special legislation to compel the atten- dance of witnesses and the production of documents and to administer oaths. An Act was therefore passed by the Governor-General of India authorising the appointment of Commissioners with the necessary compulsory powers of disclosure (a). The Bank of Van Diemen's Land at the time of its collapse was a direct debtor of the Crown to the amount of £76,000, and was also a debtor of the Marine Board of Hobart (a) Hansard, vol. 191, p. 1223. 252 POWER OP GROWN TO APPOINT for moneys deposited in the Bank by the Board, and for the expenditure of which the Board was accountable to the Crown, and the Crown might therefore legally claim a right on that ground alone to inquire into the financial condition of the Bank and the correctness of any balance-sheet issued by its Directors so long as the Bank remained indebted to the Crown. characS of the "'■*' '^ ^ fundamental principle of the British Con- poweS^onhe stitution that all the prerogative rights of the Crown are held in trust for the benefit of the people, and that they can be exercised only upon the advice of Ministers who are responsible to Parliament (a). Hence we find that the exercise of any of those rights upon the occurrence of any unusual eventuality is always closely examined by Parliament, and that the legality of its exercise in such a contingency is fre- quently challenged by the opponents of the Ministers who have advised it. Protests of that character from the Opposition benches are an inevitable result of the existence of political parties in the legislature and in the country, and every Minister who does not wish to shrink from the responsibility imposed upon him in an unusual conjuncture must be prepared to meet them. On such occasions he will probably be charged by his antagonists with following discredited precedents | and attempting to restore the arbitrary government of past centuries ; and convenient quotations from the writings of legists and publicists of high repute will be used in support of the accusation. But the definition of the prerogative given by so strong an opponent of unlimited political power as Locke, and approved by (a) See Todd's Parliamentary Government in England, 2nd ed., vol. 1, p. 384. COMMISSIONS OF INQUIRY. 253 Blackstone — viz., " the discretionary power of acting for the public good when the positive laws are silent," (a) will always supply the test by which the legality of the Minister's advice may be determined. Was the course of action recommended by the Minister pro- hibited by law : If not, was it for the public good ? The question whether an inquiry into a particular matter is for the public good or not, is not strictly a legal question. But an inquiry into a matter in which public interests were not involved would inevitably, in the absence of express statutory authority, become illegal as soon as private rights protected by law were invaded. Hence the final test of the legality of an inquiry by a Commission appointed by the Crown in the exercise of its prerogative is its recognition or its disregard of rights and interests recognised and protected by law. If these are not invaded or infringed otherwise than the law permits or authorises, no taint of illegality attaches to the inquiry. (a) Kerr's Blackstone, vol. 1, p. 245. [254.1 13. GOVERNOR AND GOVERNOR IN COUNCIL. Governor or the Governor in Council. Powers eon- A LlRGE number of the Acts of each of the Pai-lia- ferred by legis- lation upon the ments of the States in the Australian Commonwealth confer executive and sometimes legislative powers upon the Governor of the State, without making any reference to the Executive Council in connection with the grant of the powers conferred by them. Other Acts of the same Parliaments confer similar powers upon the Governor in Council. In some of the Acts in which such powers are conferred upon the Governor it is declared that the word " Governor," when used in the Act, shall mean " Governor in Council." In others of them the Governor and the Governor in Council are mentioned in different places without any apparent reason for the variation in the phraseology employed. In view of this frequent use of both phrases in Aus- tralian legislation, the student of Australian constitu- tional law cannot omit to inquire whether the legal position and functions of the Governor of a State in his capacity as the personal representative and agent of the Crown are" distinct from his position and func- tions as the depositary and organ of the local executive Governor of a State. GOVERNOR AND GOVERNOR IN COUNCIL. 25.5 authority which is necessariljr co-extensive with the legislative authority of the Parliament of the State, and whether the separate use of each of the two phrases always corresponds with that distinction, or sometimes indicates a disregard of it. In the chapter devoted to a review of the position sources of the ^ ^ status and of the Governor-General under the Constitution of the ?,'i^l!,°!?*5[°i? Commonwealth, it was noted that provision is made for his appointment in section 2 of the Constitution, and that in section 61 the executive power of the Commonwealth is declared to be exercisable by him as the Queen's representative. But there is not any pro- vision made in any of the Constitution Acts of the several States of the Commonwealth for the appoint- ment of the Governor of the State. The Governor is frequently mentioned in the Constitution Acts of the several States, but the sources of his status and his authority in each State are the Letters Patent of the Crown by which the office of Governor of the State is created, and the Commission of the Crown which appoints the particular occupant to fill it. As the supreme and primary depositary of executive authority throughout the Empire, the Crown, under the common law, possesses prerogative powers which it can exercise in all parts of the Empire, and it can delegate these or any of them to its local representative in any portion of it. Local legislation which has been assented to by the Crown, or which has not been disallowed by it within the time prescribed for the exercise of its power of disallowance, may regulate or control the exercise of the prerogative powers which have been delegated to a Governor ; and within the limits prescribed hy any such local legislation (if any) he exercises those pre- rogative powers in accordance with and subject to 256 Prerogative powers exercis- able by a Governor. GOVERNOR AND GOVERNOR IN COUNCIL. whatever rules of the common law control or regulate the exercise of them by the Crown itself in the United Kingdom of Great Britain and Ireland. In the chapter upon the distribution of the govern- mental powers of the Commonwealth, it was stated that a fundamental rule of the common law required that every executive and administrative act of the Crown which does not bj' its intrinsic character neces- sitate a personal performance of it by the Monarch, or by a representative directly appointed by him to per- form it, must be performed by an executive or adminis- trative officer who must take the responsibility of it (a). The same fundamental rule of the common law regu- lates and controls the exercise of the prerogative powers of the Crown by a Governor of any portion or depen- dency of the Empire. But some of the prerogative powers of the Crown which are exercisable by a Governor must be exercised by him in a personal per- formance of the act in which the exercise of the power is exhibited. The acts of a Governor which the law requires to be personally performed by him are very few in number, and appear to be those which are immediately hereunder mentioned, viz. : — (1) The summoning of the local Parliament ; (2) The opening of the local Parliament (&) ; (a) See Anson'a Law of the Constitution, Part II. , p. 41 , and Hearn's Government of England, 2nd ed. , p. 97. (6) The local Parliament may be opened by Commissioners directly appointed by the Governor for that purpose, as the Imperial Parlia- ment may also be opened by Commissioners appointed by the Crown for that purpose. In such cases the Commissioners represent the person of the Governor in the same manner as the Governor himself represents the person of the Monarch. GOVERNOR AND GOVERNOR IN COUNCIL. 257 (3) The prorogation of the local Parliament ; (4) The dissolution of the local Parliament ; (5) The assent or refusal of assent to any Bill passed by both Houses of the local Parlia- ment ; (6) The appointment of members of the Executive Council ; (7) The appointment of the Ministers in charge of the several departments of the Public Service ; (8) The removal of members of the Executive Council ; (9) The dismission of Ministers in charge of de- partments of the public service. In the performance of any of these acts the Governor has legally a personal discretion within any limits that may be prescribed by imperial or local legisla- tion. But under the system of parliamentary govern- ment which has been established in the several States of the Commonwealth, each of the above mentioned acts is always performed by the Governor after receiving the advice or opinion of his responsible Ministers and in accordance with such advice or opinion, but subject to any specific directions contained in the Instructions which accompany the Commission by which the Governor is appointed to his office. In the case of every other exercise of a prerogative power of the Crown the Governor must act upon the advice of one or more of the members of his Executive Council who must accept the responsibility of having advised the exercise of the power. In the last men- 17 258 GOVERNOR AND GOVERNOR IN COUNCIL. tioned cases the personal participation of the Governor is necessary to authorise the exercise of the power, but he does not personally perform the act which he authorises to be done. The most frequent examples of the exercise of a prerogative power of the Crown by a Governor in accordance with the rule of Constitutional law which requires him to act upon the advice of members of his Executive Council are found in the appointments made by him of the persons employed in the public service within the territorial limits of his authority and the dismissal of them from such service ; and in the exer- cise of the prerogative of pardon and mercy within the same area. The applicability of the rule to the exercise of the prerogative of mercy and pardon was at one time the subject of some dispute between the Governor and the acting members of the Executive Council in several of the Australian Colonies, and ultimately the responsible Ministers of the Crown in the Colony of Queensland resigned their offices because the Governor declined to accept their advice in reference to the release of aprisoner who was undergoing a term of imprisonment. The leader of the Opposition refused to attempt to form a Ministry, and the Governor was compelled to recall the Ministers who had resigned and to act in accordance with the advice which they had previously tendered to him. Since then the Instructions issued by the Secretary of State for the Colonies to all the Governors in Australia have been revised, and they now contain an explicit acknowledgment that the exercise of the prerogative power of mercy and pardon by a Governor is dependent upon the advice of one or more of his Ministers who are members of his Executive Council. The particular portion of the GOVERNOR AND GOVERNOR IN COUNCIL. 259 Instructions now issued to Australian Governors which refers to the subject is in the following words: — " The Governor shall not pardon or reprieve any offender without first receiving, in capital cases, the advice of the Executive Council, and, in other cases, the advice of one, at least, of his Ministers ; and in any case in which such pardon or reprieve might directly affect the interests of Our Empire, or of any country or place beyond the jurisdiction of the Government of the State, the Governor shall, before deciding as to either pardon or reprieve, take those interests specially into his own .personal consideration, in conjunc- tion with such advice as aforesaid." The executive acts of the Crown which necessarily Executive acts ^ of the Crown require a personal performance of them by the Monarch which require ■^ ^ *■ ^ the personal will be found upon a close examination of them to be the^iJonaroV those acts which the law requires, or supposes, or permits him to perform as declarations of his personal will and decision. The character of the parliamentary government which has been established in England has substantially substituted for the personal will and decision of the Monarch, in the per- formance of such acts, the will and decision of those members of the Privy Council who by virtue of the support of a majority of the House of Commons are in charge of the several departments of the public service. These members of the Privy Council are the immediate advisers of the Crown and are collectively designated the cabinet. But the cabinet is not known to the law either in England or in Australia, and every act of the Monarch or of a Governor which 260 GOVERNOR AND GOVERNOR IN COUNCIL. the law requires to be personally performed by him is presumed by the law to be the result of his own discretion and decision. In regard to all other acts of the Crown the following observations which are contained in Hearn's Oovernment of England (a) are applicable as much to the representative of the Crown in each State of the Australian Commonwealth as to the King in England. " The Royal will in the contemplation of the law is by no means the personal will of the King. It is his official will, enlightened by the advice and carried into effect through the agency of councillors and ministers recognised by the law and personally responsible both for their advice and their acts. . . . Every official act must be performed through the agency of some officer, often indeed of several officers, and must be attested in the mode required by law for each such transaction." Eflfeotofthe The establishment of parliamentary and responsible establishment of i. ./ i andi^eT'onSwe government in the several States of the Common- upon "KL wealth of Australia in a form which is substantially the Crown. the samc as that in which it exists in England has had very largely the same result which it has produced in England, in the matter of the substitution of the will and decision of the Ministers who have charge of the several departments of the public service for the per- sonal will and decision of the Governor, in the performance of those acts which the law supposes to be declarations of his personal will and decision. But in the case of the Governor of each State in the Commonwealth of Australia, as also in the case of the Governor-General, his personal will and decision as the representative of the Crown are expressly (a) 2nded., pp. 18-19. GOVERNOR AND GOVERNOR IN COUNCIL. 261 reserved in particular cases by the Instructions which accompany the Commission bj^ which he is appointed to his office. Those parts of the Instructions which reserve an exercise of personal discretion to the Gover- nor are in the following words : — " VI. In the execution of the powers and authori- ties vested in him, the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council, he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to Us with- out delay, with the reasons for his so acting. " In any such case it shall be competent to any Member of the said Council to require that there be recorded upon the Minutes of the Council the grounds of any advice or opinion that he may give upon the question. " VII. The Governor shall not, except in the cases hereunder mentioned, assent in Our name to any Bill of any of the following classes : — 1. Any Bill for the divorce of persons joined together in holy matrimony. 2. Any Bill whereby any grant of land or money; or other donation or gratuity, may be made to himself. 3. Any Bill affecting the currency of the State. 4. Any Bill the provisions of which shall appear inconsistent with obligations imposed upon Us by Treaty. 262 GOVERNOR AND GOVERNOR IN COUNCIL. 5. Any Bill of an extraordinary nature and importance whereby Our prerogative, or the rights and property of Our sub- jects not residing in the State, or the trade and shipping of the United King- dom and its Dependencies may be prejudiced. 6. Any Bill containing provisions to which Our assent has been once refused, or which have been disallowed by Us : " Unless he shall have previously obtained Our Instructions upon such Bill through one of Our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the significa- tion in the State of Our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requir- ing that such Bill be brought into immediate operation, in which case he is authorised to assent in Our name to such Bill, unless the same shall be repugnant to the law of Eng- land, or inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto." Position of a The local legislation in each of the several States of Governor when ^ o^ofili"reiation *'^^ Australian Commonwealth has sometimes conferred ofthep'ubH?™''upon the Governor a particular office in relation to ferred upon him some department of the public service. In all such cases it is the Governor in person who is empowered to exercise the functions of the office. He may seek service is con- ferred upon hi by legislation. GOVERNOR AND GOVERNOR IN COUNCIL. 263 the advice of his Executive Council in regard to all or any of the acts performed by him in the exercise of such functions, and doubtless he will always consult his responsible Ministers in regard to such acts, but in all such cases the law permits him to exercise his per- sonal discretion and decision with respect to the advice that may be given to him. It is in connection with legislation of this kind that the indiscriminate use of the phrases " Governor " and " Governor in Council " sometimes obscures the substantial distinction between the personal will and decision of the Governor which the law supposes or permits him to exercise in partic- ular cases, and his official will and decision which in all other cases the law requires him to declare. Per- tinent examples of such legislation are found in the several Acts which were enacted by the different Aus- tralian Parliaments to provide for the establishment and maintenance and discipline of military and naval forces in the several colonies before the establishment of the Commonwealth. An examination of the pro- visions relating to the Governor which are found in these Acts will disclose the confusion that frequently exists in reference to the dual position of the Governor. In the first section of The Volunteer Force Regulation Position of a Governor as Act 1867 of the State of New South Wales the word commander-in- Chief of the " Governor " is defined as " The Governor with the ^""001™^'' advice of the Executive Council " ; but this definition l^gisution. is made subject to the preliminary provision that all the words defined in that section shall have the respec- tive meanings assigned to them " if not inconsistent with the context or the subject matter." The fourth section of the same Act declares that : — "The Governor as the Queen's Representative shall be the Commander-in-Chief of all the 264 GOVERNOR AND GOVERNOR IN COUNCIL. local Forces raised in the Colony and all arrangements connected with the organization drill and discipline of such forces shall so far as the same shall come under the scope and operation of this Act be made by his authority by such officers as he may appoint." It is evident that the purport of this section is to appoint the Governor in person Commander-in-Chief of all the local Forces raised in the Colony, and there- fore the interpretation of the word " Governor " which is given in the first section of the Act, viz., " Governor with the advice of the Executive Council," is primarily inconsistent with the subject matter. But when sec- tion 4 declares that " all arrangements connected with the organisation, drill and discipline of such forces shall so far as the same shall come under the scope and authority of this Act be made by his authority by such officers as he may appoint," it immediately becomes necessary to examine closely the language of the sec- tion and to compare it with other portions of the Act before the question of what powers and functions it confers upon the Governor in person in his capacity as Commander-in-Chief can be definitely determined. Section 50 of the same Act provides that : — " The Governor may from time to time make any regulations not inconsistent with this Act for general government discipline and manage- ment of the Volunteer Forces in the Colony and the several corps thereof and for all other purposes of this Act and may call for such returns as may from time to time seem requisite. And all such regulations shall upon being published in the Government Gazette GOVERNOR AND GOVERNOR IN COUNCIL. 265 be valid in law. Provided that a copy of every such regulation shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament be then sitting and if Parliament be not sitting then within fourteen days after the commence- ment of the next Session of Parliament." The authority conferred upon the Governor by this section is legislative, and beyond all doubt it is con- ferred upon the Governor in Council and not upon the Governor in person, and it extends to " the general government, discipline and management of the Volun- teer Forces of the Colony." Therefore when section 4 directs that " all arrangements connected with the organisation, drill and discipline of such Forces shall so far as the same shall come under the scope and operation of this Act be made by his authority by such officers as he may appoint," it cannot be construed to empower the Governor to exercise personally as Com- mander-in-Chief any of the authority conferred upon the Governor in Council by section 50; and the purport of section 4, when read with section 50, and other portions of the Act, seems to be simply to declare that there shall be unity in the command and management of the forces and that all administrative arrangements in connection with the organisation, drill and discipline of them shall have the Governor's approval in his capacity as Commander-in-Chief. As Commander-in- Chief the Governor is undoubtedly the supreme exec- utive officer appointed to carry out the provisions of the Act, but in the execution of the Act he will be as much bound by the regulations made by the Governor in Council as any officer under him. 266 GOVERNOR AND GOVERNOR IN COUNCIL. Opinion of Sir In the year 1869 the Attorney-General of New South William " "^ Manning. Wales was requested by the Governor to advise him as to his personal powers and functions under the same Act in reference to some particular matters that had arisen in the administration of it, and the following opinion was given by the Attorney-General (Sir Wm. Manning) in reply to the questions submitted to him. " Commander-in-Chief of Volunteer -Force. "Opinion of Attorney-General as to powers of Governor. " 1. From His Excellency's Minute of 5th Decem- ber, I gather that three questions were then raised by him for consideration, namely: — 1st. — Whether, in cases of appeals against certain disciplinary decisions of the Officer commanding the Volunteer Force, such appeals should be decided by the Governor on his own respon- sibility, or with the advice of the Executive Council ? 2nd. — Whether such appeals should be sub- mitted direct to His Excellency, or be forwarded through the Colonial Sec- retary ? And incidentally thereto, whether, on being forwarded by the Colonial Secretary, they should he accompanied by a previous minute of that Minister ? 3rd. — Whether recommendations for the appointment of Officers (not for the ' Permanent Staff ') should be for- warded direct to the Governor, or through the Colonial Secretary ? And GOVERNOR AND GOVERNOR IN COUNCIL. 267 incidentally to this question also, whether they should be accompanied by a previous minute of that Minister ? (It being assumed that such appoint- ments can only be made by the Governor in Council). "My opinions upon these questions are as fol- lows : — 1. I think such gippeals should be de- cided by the Governor upon his own responsibility, as Her Majesty's Repre- sentative, exercising the functions of Commander-in-Chief of the Force. The nature of the duty is such as by all analogy belongs to the Commander-in- Chief, and not to the Queen or Governor in Council. Such is the case in respect of Her Majesty's Regular Forces, and such also with regard to the Volunteer Force at home. The despatches of His Grace the Duke of Newcastle and Mr. Secretary Cardwell, which form the basis on which our Volunteer Act was passed by the Houses of Parliament, and assented to on Her Majesty's be- half, indicate with tolerable plainness the expectations of Her Majesty's Gov- ernment in this respect ; and I must add that the view which I take appears to me that most consistent with Con- stitutional principles. The difficulty which has been thought to arise from the terms of the interpretation clause 268 GOVERNOR AND GOVERNOR IN COUNCIL. in the Act does not embarrass me, be- cause it only says that the word "Gov- ernor " is to be construed as meaning " the Governor, with the advice of the Executive Council," in cases where such construction would be not incon- sistent with the context or subject matter; and in my opinion there would be such inconsistency in this case. 2. These appeals should, I consider, be sub- mitted by the Officer commanding the Force direct to the Governor or Com- mander-in-Chief, and not through the Colonial Secretary ; and they should not be accompanied by any minute of that Minister. 3. In my opinion, the course hitherto pur- sued of submitting recommendations for the appointment of officers (not on the Permanent Staff) direct to the Governor, and without any minute from the Colonial Secretary, is that which is most consistent with the position of His Excellency, relatively to Her Majesty on the one hand, and to the Volunteer Force, accepted on Her behalf, on the other. Assuming that such appointments can only be made with the advice of the Executive Council (which I am not called upon to consider), still I see nothing what- ever in the Act which necessitates or contemplates that the Colonial Sec- retary, or any other Minister, should GOVERNOR AND GOVERNOR IN COUNCIL. 269 be the channel for conveying the re- commendations for such appointments or that they should be filtrated through or be in any way preliminarily acted upon in the ofiice of any such Minister. " II. Having had a conversation with Mr. Secretary Robertson on the subject of these papers, in which he seemed to think that His Excel- lency's inquiry was not intended to be limited to the questions noticed in his minute of 5th December, and that a more general opinion was desired as to the proper course to be pursued in regard to the relations between the Governor, the Volunteer Force, and the Minister, I submit my further opinion as follows : — I think that all matters concerning the Force, originating within it, or properly coming under the cognizance of the Commanding Officer in the first in- stance, should be submitted by him direct to the Governor. Other matters (though it may be impossible to draw a line abstractly) should be submitted by the Colonial Secretary. Thereupon, it will be for His Excellency to deter- mine in each case whether the advice of the Executive Council is required, or whether to act prerogatively on Her Majesty's behalf. It may often prove difficult to determine which course ought to be pursued, as the Legislature has thought fit to make 270 GOVERNOR AND GOVERNOR IN COUNCIL. the question depend upon the 'context or subject matter ' in each case, instead of determining for itself in what cases the advice of the Council should be required. I may, however, take leave to suggest that the difl&culty would be lessened by keeping in view the two distinctive characters in which the Governor is associated with the Volun- teer Force — the one as specially repre- senting Her Majesty and as Commander in-Chief, the other as Governor of the Colony in relation to its internal affairs. I conceive that in all cases and matters in which the Governor is, by the terms of the Act, or by consequence of the position assigned to him under it, em- powered or required to exercise any functions in relation to the Force, there should be a bond fide concurrence by him (as expressed by Mr. Secretary Cardwell) in what is done, and an actual exercise of ' authority ' by him — whether with or without the advice of his Council, as the law may require in each case. Such appears to have been the view of the Secretaries of State whose despatches are before us, such the intention of the Legislature, and such the necessary inference from the special relation of the Force to Her Majesty in an Imperial sense. And I may here remark, in proof of GOVERNOR AND GOVERNOR IN COUNCIL. 271 the general concurrence of our Legis- lature in the views of the Duke of Newcastle, that the fourth section of the Act, which is the leading enact- ment, adopts the precise words of his despatch. " I therefore, submit that anything like a pre- judgment conveyed by. a minute of the Colonial Secretary or of the whole Ministry out of Council, would be illegal and uncon- stitutional. W. M. Manning, A.G. Jany. 20/69." In the Defences and Discipline Act 1890 of the State Legislation of of Victoria it is declared that the word " Governor " when used in Part I. of the Act " shall mean and apply to the Governor in Council." Part II. of the Act refers exclusively to the agreement previously made between the Imperial Government and the Governments of the several Australian Colonies for the maintenance of a squadron of war ships in Australian waters ; and the word Governor does not occur in it. In Part III. the full expression " Governor in Council " is used in every section in which the Governor is mentioned excepting section 67, which provides that : — " The commanding and other officers of the rank of commissioned officers in each corps shall be appointed by commissions under the hand and seal of the Governor; and all such officers shall rank with the officers of the regular troops in Her Majesty's service as juniors of their respective ranks." The change of language in this section does not 272 GOVERNOR AND GOVERNOR IN COUNCIL. raise any question relating to the personal powers of the Governor. Neither a commission to a military- officer nor any other document can be "under the hand and seal" of the Governor in Council, and whenever any document is to be authenticated by the signature and seal of the Governor he necessarily signs and seals it in his personal name. But the fact or transaction which the document authenticates is not therefore his personal act. All commissions to military or naval officers appointed by a Governor under the authority of such colonial legislation as that lastly mentioned are countersigned by a colonial Minister of the Crown and are expressions of the official and not the personal will of the Governor whose name is attached to them, and the Governor's Ministers are responsible to the local Parliament for all such ap- pointments. Legislation of The Volunteer Act of 1878 of the State of Queensland. Queensland declares in section 3 that : — " The Governor, as Her Majesty's Representative, shall be Commander-in-Chief of all the Naval and Military Forces of Queensland." Section 31 of the same Act provides that : — " Commissions of officers in the Defence Force shall be granted by the Governor. Warrant officers shall be appointed by the Minister. Sergeants in the Land Force shall be appointed by the Commandant, and all other non- commissioned officers therein shall be ap- pointed by the commanding officer of the corps to which they belong. Petty officers in the Marine Force shall be appointed by the senior Naval officer. GOVERNOR AND GOVERNOR IN COUNCIL. 273 All officers shall hold their rank during pleasure." And section 33 declares that — " The Governor may appoint staff officers of the Defence Force with such rank as from time to time may be found requisite or necessary for the efficiency of the service ; and such stafFofficers shall have such rank and author- ity in the Defence Force as are held relatively in Her Majesty's service, and their duties shall be such as shall from time to time be prescribed." The Act does not contain any interpretation of the word Governor, and the phrase " Governor in Council " appears to be used only in section ] 2, which provides that : — " The Governor in Council may from time to time by Proclamation appoint any part of the Colony to be a District for the purposes of this Act, and may divide any such District into Divisions, and direct what Force shall be established in such Districts and Divisions respectively." If the use of the phrase " Governor in Council " has been intentionally confined to section 12, then the pur- port of the Act would appear at first sight to be to confer upon the Governor " as Her Majesty's Kepre- sentative and Commander in Chief of all the naval and military forces of Queensland " (section 3) all the powers vested in the Governor by the Act except the power conferred by section 12. But this is an impossible 18 274 GOVERNOR AND GOVERNOR IN COUNCIL. construction of the Act in view of such provisions as those contained in sections 25, 26 and 27 and in num- erous other sections of it. Section 25 provides that : — " The Governor may, at any time, disband any Active Corps, if he considers it necessary so to do." Section 26 declares that : — " In order to provide for the care and protection of forts, magazines, armaments, warlike stores, and other such service, and to secure the establishment of a school for military instruc- tion in connection with the Defence Force, the Governor may raise, station, and maintain one battery of artillery, the whole strength of which shall not exceed one hundred and iifty men. The officers of this corps shall be appointed during pleasure, and the men shall be enlisted in the prescribed manner for per- iods of three years continuous service." Section 27 provides that : — " The Governor may also raise and maintain such and so many Officers and seamen as may from time to time be required to man any armed ships or vessels belonging to Her Majesty's Colonial Government. The officers of such ships shall be appointed during pleasure and the seamen shall be enlisted in the prescribed manner and for the prescribed period of ser- vice. All such officers and seamen shall, for purpose of discipline, be deemed to be called out for active service, and be subject to the laws and regulations which under the pro- GOVERNOR AND GOVERNOR IN COUNCIL. 275 visions of this Act apply to oflScers, non- commissioned officers, and men of the Marine Force, called out for such service." The powers conferred by these sections are not powers which can be exercised by the Commander-in- Chief, and are not powers that can be exercised by the Governor without the advice of his Ministers. The same statement applies equally to the power conferred upon the Governor by section 91 " to make such Regulations as he thinks fit relating to any matters or things which may be necessary to be prescribed for carrying this Act into effect," and to impose a penalty for a breach of any such Regulation. This is a legislative power, and it cannot be exercised by the Governor without the advice and concurrence of some members of the ^Executive Council, who must accept the responsi- bility of the manner in which the power is exercised. It cannot be supposed that the Parliament of Queensland intended to place the Governor as the Representative of the Crown in any other position in relation to the command of the military forces of the State, and in relation to the execution of the statutory powers conferred upon him by The Volunteer Act of 1878, than the position occupied by the Crown itself in relation to the command of the Imperial Army and to the execution of the Acts of the Imperial Parliament relating to the military forces in the United Kingdom. The relation of the Crown to the military forces raised and maintained under the direct authority of the Imperial Parliament is fully stated in the following extract from Anson's Law of the Constitution (a). (a) Part II., " The Crown," p. 371 (1st ed.). 276 GOVERNOB AND GOVERNOR IN COUNCIL. theSr'own to°' " The Secretary o£ State is responsible for the foroes^raSand exercise of the royal prerogative in respect of the under the direct army, and cvery thing that is done in the armv is authority of the , . ■. -^ Imperial done subiect to his approval. For the use of these Parhament, j i i powers he is responsible to Parliament. He must answer to Parliament for the discipline of the army and its relations to the civil members of the community as well as for its distribution, efficiency, and cost, but he is also bound to prevent the interference of Parlia- ment in the action of the executive and in the discretion of the Queen's servants as to the movements and disposition of the forces. "The House of Commons may express its disapproval of a Minister directly by censure, or indirectly by refusing him a vote on a question which he thinks important in the business of his office, but while he holds office he is responsible for the exercise of the Queen's prerogative in respect of the army, and is bound to see that the prerogative is exercised by the Crown and not by Parliament. No one would desire to see the army the servant of a majority of the House of Commons, nor is it possible to conceive that tlie , managment of any Minister however incapable would be so bad as the managment of an indeterminate number of irresponsible politicians. " Especially is the Secretary of State bound to main- tain the discretionary prerogative of the Crown in the appointment and dismissal of officers, their promotion or reward, or the acceptance of their resignation. This prerogative is exercised through the Commander- in-Chief, though the Secretary of State is responsible for its exercise, and it is the more important that this prerogative should be exercised by a non-political officer such as the Commander-in-Chief, because our GOVERNOR AND GOVERNOR IN COUNCIL. 277 army, unlike the armies of other European countries, is not divorced from the political rights of citizenship. The soldier if duly qualified, may exercise the franchise, the officer may sit in the House of Commons. Plainly then, the King or a minister of the Crown might use or be pressed to use the powers of appointment, promotion, or dismissal for political and party ends. The history of the last century attests the reality of this danger." The Defence Act 1885 of the State of Tasmania is ijeKisiation of ■' Tasmania. substantially a transcript of The Volunteer Act of 1878 of the State of Queensland ; and in the year ] 887 the Governor of Tasmania with the advice of the Executive Council made a number of regulations under the power conferred upon him for that purpose by the Tasmanian Act, among which was one numbered 108 which provided that: — " If the Commandant or any officer under his command from anj'' cause become or be unable to perform his duties under his engagement, the Minister may, if he think fit, recommend to the Governor in Council that the said Commandant or such officer (as the case may be) be suspended or removed, and he may thereupon be removed by the Governor." An officer came from England to Tasmania under a contract made between him and the Agent-General of the Colony for a service in the Defence J'orce of the Colony for a period of five years. The agreement prescribed that the officer should faithfully and diligentlj'' employ the whole of his time in the service of the Government during the term of his engagement, •278 GOVERNOR AND GOVERNOR IN COUNCIL. and the Agent-General, on behalf of the Government, promised and agreed with the officer that, in considera- tion of the agreement of the officer to enter into the service of the Government as therein mentioned and of the due and faithful service to be rendered by him to the Government for the previously mentioned period of five years, the Government should pay his passage money from London to Tasmania, and return passage to London on a satisfactory termination of the engagment, and should pay him for his services at the rate of £450 per annum, and half pay at the same rate from the date of the agreement to the date of his arrival in Tasmania. The agreement further provided that the officer should receive quarters and allowances for fuel and light, and declared if he should at any time neglect or refuse or from any cause become or be unable to perform his duties under the agree- ment, his removal or suspension should be conducted under and be subject to the regulations in force at the time in Tasmania under The Defence Act 1885, or any other regulations applicable to the case of the officer under the agreement. Shortly before the expiration of the agreement, it was extended for a further period of five years ; but before the expiration of the second period of five years the Government dismissed the officer without notice or compensation, and refused to make any charge against him before a court martial or a couft of inquiry held under the provisions of The Defence Act 1885. The officer filed a supplication in the Supreme Court under The Crown Redress Act to recover damages for an alleged wrongful dismissal, and to that supplication the Attorney-General pleaded by way of demurrer that the supplication was bad in substance, GOVERNOR AND GOVERNOR IN COUNCIL. 279 and the points oClaw submitted on behalf of the Crown for determination by the Court were : — (1) That inas- much as the agreement set out in the.supplication shows that the suppliant was in the public service of the Gov- ernment of Tasmania, the said Government might law- fully dismiss the suppliant from the said service at its pleasure, and without pajj'ment of any compensation or damages, and notwithstanding the existence of the special agreement set out in the supplication ; (2) That the said Government might lawfully dismiss the suppliant at pleasure under the provisions of The Defence Act 1885 ; (3) That no engagement made by the Crown in the absence of some statutory authority with any of its military officers in respect of services, either past, present or future can be enforced against the Crown in any court of law ; (4) That the suppliant as a military officer was liable to dismissal at will, notwithstanding the agreement stated in the supplica- tion. The points submitted on behalf of the suppliant were: — (1) That the Crown had not the power to dismiss the suppliant peremptorily, (a) because The Defence Acts and the Regulations made under them have made provisions inconsistent with the prerogative of peremptory dismissal ; (b) because the express pro- vision for conditional dismissal in the contract of 1890 necessarily contradicts the implication in that contract of a term for peremptory dismissal, and the express contract, therefore, governs the terms of dismissal, and is not illegal because it follows and is authorised by the statutes and by regulations which are equal to statutes ; (c) because the express contract can be en- forced under The Grown Redress Act, which makes contracts between the Crown and a subject actionable like contracts between subject and subject ; (2) That 280 GOVERNOR AND GOVERNOR IN COUNCIL. even if the Crown had power to peremptorily dismiss the suppliant from his employment the provision for payment of passage money to England stands upon a different footing, and is good even if the claim for salary and allowances is bad ; (3) That the claim for salary and allowances from 1st to 7th July is good even if the remainder of the claim is bad, as it is a claim for work already performed. When the demurrer came on for argument the Supreme Court was constituted by two judges and they differed in opinion. The opinion of the junior judge was afterwards withdrawn and judgment was entered for the Crown in accordance with the opinion delivered by the senior judge. The junior judge was of opinion that the Act made special provision for the appoint- ment of staff officers and that Regulation 108 referred exclusively to them and protected them from peremp- tory dismissal. In the opinion of the senior judge, which stood as the judgment of the court, reference was made to regulation 108 in the following words : — " This Regulation provides that ' if the Com- mandant or any officer under his command from any cause become or be unable to perform his duties under his engagement, the Minister may, if he think fit, recommend to the Governor-in-Council ,that the said Commandant, or such officer (as the case may be) be suspended or removed, and he may thereupon be re- moved by the Governor.' The position of this Regula- tion under the heading ' Permanent Force ' and sub- heading 'General Staff' indicates that the words ' any officer under his command ' must not be taken to mean any officer of the Defence Force, but are intended to refer to staff officers only. This being understood, it is said that Regulation 108, providin GOVERNOR AND GOVERNOR IN COUNCIL. 281 for the suspension or removal of the Commandant and staff officers under certain specified circumstances, (namelj'- inability to perform duties), precludes the possibility of such officer's removal under any other circumstances by the application of the maxim expressio unius exclusio alterius, in other words, that this regulation places the Commandant and staff officers in a separate category, exempting them from the general provisions of the Act, that all officers hold their rank during pleasure (section 31), and that officers of the Permanent Force hold their appointments during pleasure (section 28). But if the virording of the Regulation be looked at more carefully, it will be seen that this view cannot be maintained. It may be true that it places the Commandant and staff officers in a separate category, but the point in respect of which they are distinguished is that, in certain circum- stances the Minister can recommend their suspension or removal to the Governor-in-Council. The power of the Governor to deprive an officer of his rank is ex- pressly given by the Act, and Regulation 108 cannot be construed to mean that before he can exercise that power, the Minister must make a recommendation for suspension or removal to quite another authority, viz., the Governor-in-Council. Such an interpretation would make the regulation antagonistic to the Act, and therefore ultra vires. As I read the Regulation it appears to be merely an addition to the provisions of the Act in the matter of dismissal. There is nothing in the Act itself providing for the temporary suspen- sion of an officer, and the Regulation supplies the omission, also mentioning the right to remove which would naturally be exercised in cases of permanent incapacity. The provisions of Regulation 108 cannot, 282 GOVERNOR AND GOVERNOR IN COUNCIL. therefore, be held to affect in any way the general power of the Governor ; they merely provide that for a particular class of officers in particular circumstances, the minister may take steps to obtain their removal, temporary or permanent." The construction placed here upon the provisions of The Defence Act of Tasmania which refer to the ap- pointment of officers and upon Regulation 108 seems to recognise a power of dismissal vested in the Governor in person as Commander-in-Chief and exercisable inde- pendently of the Governor in Council. But if the Governor as Commander-in-Chief has the power to dismiss an officer without the recommendation of the Minister for Defence or the concurrence of any members of the Executive Council, he must also have the power to suspend him without any such recommendation or concurrence, and therefore Regulation 108 is not re- quired to enable him to suspend or dismiss an officer. Nor can the Regulation have the effect of limiting or reducing the Governor's power of dismissal if that power is expressly given to him as Commander-in- Chief by the Act, in which case the Regulation is nugatory, except as a declaration of procedure which would not be binding if not in accordance with the Act. But if the word " Governor " whenever used in The Defence Act in reference to the administration of the Act means the Governor in Council; then Regula- tion 108 is perfectly consistent with the Act and is supplementary to it. Undoubtedly the power of ap- pointing and dismissing all the officers of The Defence Forces of the State is vested by 7'Ae Defence Act in the Governor in the same manner as the power of appointing and dismissing all the officers in the civil service of the State is vested in him by GOVERNOR AND GOVERNOR IN COUNCIL. 283 common or statute law. But wherever parliamentary and responsible government exists in a dependencj' of the British Empire, all officers in the public service, whether civil or military, are appointed and dismissed hy the Governor upon the advice of his Ministers who are responsible for the conduct of the various departments of the public service. This fun- damental rule extends to the appoiniiment and dismissal of officers who share with the Governor the honour and privilege of directly representing the Crown and exercising prerogative powers, such as the Lieutenant- Governors of the Provinces in the Dominion of Canada. The fifty-ninth section of the British North America Act 1867 declares that " A Lieutenant-Governor shall hold office during the pleasure of the Governor- General." In the year 1879 the Lieutenant-Governor of the Province of Quebec was removed by the Governor- General upon the advice of his responsible Ministers, and a long controversy ensued in the course of which the Premier of Quebec contended that the power of dismissing the Lieutenant-Governors of the Provinces was vested in the Governor-General in person and not in the Governor-General in Council as was contended by the Premier of the Dominion. But Sir John Mac- donald successfully refuted the contention of the Premier of Quebec, and made it clear that " all acts of government must be equally performed under the advice of responsible Ministers wherever the British Constitution prevails, whether the chief executive officer is individually charged with the same, or whether his council are formally associated with him in the transaction " ; and the Secretary of State for the colonies ratified the application of this rule by the Premier of the Dominion to the case then under dis- 284 GOVERNOR AND GOVERNOR IN COUNCIL. cussion (a). Therefore, unless The Defence Act of the State of Tasmania creates an exception to this funda- mental rule, all the powers conferi;ed by it upon the Governor are powers which cannot be exercised by him without the advice and concurrence of some members of his Executive Council, excepting such powers as may be expressly conferred upon him as the holder of a specific office distinct from his office of Governor, such as that of Commander-in-Chief of the military and naval forces of the State. As Commander-in-Chief he may undoubtedly exercise any of the powers and functions which are legally inherent in that office or are expressly conferred by any law upon the person holding it. But the power of appointing and dismiss- ing officers of the Defence Force at his personal dis- cretion is not legally inherent in the office of Com- mander-in-Chief, and it is not conferred upon the holder of that office by The Defence Act. On the contrary that power is expressly conferred by the Act upon " the Goveriior " as such, and it must be exercised by him in accordance with the same rule that applies to his exercise of every other power conferred by the Act upon " the Governor " as such. which^havTbeen The case which has been mentioned in connection Parliament as with The Dcfcncc Act of the State of Tasmania directed by law. suggests a very important question of constitutional law which was not argued or mentioned in it, but which may be very fitly considered in this chapter. It was contended on behalf of the Crown in that case that Regulation 108 was ultra vires of the Act and (a) See Todd's Parliamentary Government in the British Golonii 2nd ed., pp. 608-610. GOVERNOR AND GOVERNOR IN COUNCIL. 285 invalid. Section 95 of The Defence Act of the State of Tasmania is as follows : — " 95. (1) All Regulations made under the authority of this Act shall be published in the Gazette ; and when so published they shall have the force of law as fully as if they were con- tained in this Act, of which they shall be deemed to form a part. " (2). All Regulations made under this Act, and an annual report of the state of the Defence Forces, shall be laid before Parliament by the Minister." The question suggested by this section is, whether the validity of anyRegulation made under the authority of the Act, and published in the Gazette and laid before Parliament as directed, can be reviewed in a court of law ? The provision that all Regulations made under the Act shall be laid before Parliament appears 'prima facie to have been inserted for the purpose of inviting the attention of the two Houses of Parliament to them, so that either House might take such action as it might deem proper to secure the amendment or abrogation of any Regulation of which it disapproved. But the attention of Parliament is invited to something which presumably has the force of law by virtue of its pub- lication in the Gazette ; and if no disapproval of it is expressed by Parliament, the inference is that Parlia- ment desires that the Regulation shall continue to have the same effect which publication in the Gazette has presumably given to it. The Municipalities Act 1867 of the State of New South Wales authorised the Municipal Councils elected under its provisions to make by-laws on a variety of subjects, and section 158 enacted 286 GOVERNOR AND GOVERNOR IN COUNCIL. that " All or any such by-law being consistent with the provisions of this Act and not repugnant to any other Act or law in force within the Colony of New South Wales shall havethe force of law whenconfirmedby the Governor and published in the Government Gazette, but not sooner or otherwise ; and copies thereof shall be laid before both Houses of Parliament forthwith, if Parliament be sitting, and if not, then within fourteen days after the opening of next session." The effect of this section was considered by the Judicial Committee of the Privy Council in the case of Slattery v. Naylor (a), and a very strong doubt was expressed in the judgment of the Judicial Committee whether any by-law made under the alleged authority of the Act and confirmed by the Governor and published as required by section 158 could be impugned in a court of law upon the ground that it was unreasonable. The judgment in that case dealt separately with the two objections that the by-law in question wasultraviresajid that it was unreasonable. But, in dealing with the objection that it was unreason- able, Lord Hobhouse observed that the argument of Sir Horace Davey on that point made the question of reason- ableness only a branch of the question whether the by- law was ultra vires ; and the concluding reason given for supporting the validity of the by-law was that it did not appear that the two Houses of Parliament on whose tables the by-law had been laid had thought it neces- sary to modify the powers conferred by the Act or to interfere with the exercise of them; In that case the Act of the Parliament of New South Wales provided that confirmation by the Governor and subsequent publication in the Gazette should endow with force of law such by-laws only as were consistent with the (ci) L.R. Appl. Cases, vol. 13, p. 446. GOVERNOR AND GOVERNOR IN COUNCIL. 287 provisions of the Act and not repugnant to any other law in force in the colony. But no such qualification or limitation is expressed in the section of The Defence Act of the State of Tasmania, which authorises the Governor to make Regulations, or in the section which directs the publication of them in the Gazette. The language of the section (94) which confers upon the Governor the power to make regulations is as follows : — " 94. The Governor may make such Regulations as he thinks fit relating to any matters or things which may be necessary to be prescribed or done for carrying this Act into effect, and for prescribing and defining the duties of members of the Defence Force, and may by any such Regulations impose a penalty not exceeding Twenty pounds for a breach thereof." The only semblance of a restriction upon the Gov- ernor's unlimited discretion is contained in the descrip- tion of the matters and things in relation to which he is empowered to make regulations, viz., " matters or things which may be necessary to be prescribed or done for carrying this Act into effect." But the Governor in Council, subject to the supreme control of Parliament, is the sole judge of what is necessary to be prescribed to carry the Act into effect ; and if the Governor in Council decided that the proper instruction and efficiency of the local Defence Force could not be secured without the engagement of officers of the Imperial Army, and that in order to induce such officers to leave England it was necessary to offer them security of tenure for a fixed period of service, and a 288 GOVERNOR AND GOVERNOR IN COUNCIL. Regulation was made for that purpose and published as prescribed by the Act and submitted to both Houses of Parliament without any exception being taken to it in either House, can the validity of the Regulation be challenged in a court of law ? If the regulation prescribes anything that is contrary to the will of Parliament as expressed in the Act, either of the Houses of Parliament may intervene when the Regulation is submitted to it. If neither of the Houses of Parliament intervenes, does not the legal presumption follow that Parliament approves of the Regulation ? And seeing that Parliament has already declared that, upon being published in the Gazette, the Regulation "shall be deemed to be a part " of the Act, can it be challenged as ultra vires of a law of which it is a portion ? of the phrases The legal meanings of the phrases "the Governor "Governor in counoii" and in Council " and " the Governor with the advice of the "Governor with I'^j'g^t^l""''^ Executive Council" when they are used in colonial oounou." legislation were considered by the Attorney-General and the Solicitor-General of England (a) in the year 1857 in a case submitted to them by the Secretary of State for the Colonies, and they gave the following joint opinion upon the matter. "Lincoln's Inn, I7th December, 1857. "In obedience to the request contained in Mr. Merivale's letter, we have the honor to report : — "That we have considered the despatch from the Governor of the Bahamas. The Royal instructions treat the presence of the Governor as necessary at every meeting of the Executive Council. They dis- " (a) Sir R. Bethell and Sir H. S. Keating. GOVERNOR AND GOVERNOR IN COUNCIL. 289 pense with his presence in cases only of some in- superable impediment. "Whenever the Governor is physically able to attend, he is bound to be present. Of the three forms of expression cited in the despatch as contained in Colonial Acts confirmed by the Crown, we are of opinion that where a colonial enactment enjoins certain things to be done ' by the Governor in Council,' the Governor must be present, and the Royal instructions do not control the act so as as to admit of the things being done in the absence of the Governor, even thougli such absence be caused by some insuperable impediment. " Secondly and Thirdly. — Where the Colonial Acts enjoin certain things to be done 'by the Governor, with the advice of the Executive Council,' or simply to be done ' with the advice and consent of the Executive Council,' the forms of expression do not require the actual presence of the Governor in Council as a necessary condition, but the enactments, of course, do not control or dispense with the necessity of obeying the instructions ; and in these two latter cases, therefore, whenever the attendance of the Governor is prevented by an insuperable impediment, the Act may be done by the Council, with the subsequent concurrence of the Governor (a). The Right Hon. H. Labouchere, M.P., &c. &c. Richard Bethell. Henry. S. Keating." In the Constitution of the Commonwealth the Govemor- expressicn " Governor-General in Council " is used in Governor- General in .^___ Council. (a) Forsyth's Cases and Opinions on Constitutional Law, pp. 78-9. 19 290 GOVERNOR AND GOVERNOR IN COUNCIL. nine places, viz., sections 32, 33, 63, 64, 67, 70, 72, 83 and 85. In all other sections in which the Governor- General is mentioned the phrase "Governor-General" is employed without any addition to it; and in view of the foregoing observations upon the corresponding varia- tions of phraseology in the legislation of the several States of the Commonwealth, it is doubtful whether the variations which occur in the phraseology of the Con- stitution of theCommonwealth were necessary. The use of both phrases in section 70 of the Constitution is clearly correct because the section refers directly to legislation of the States in which both phrases are found. But there does not seem to be any necessity for the use of the phrase " Governor in Council" in any other section of the Constitution in face of the explicit declaration contained in section 62 that " These shall be a Federal Executive Council to advise the Governor in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors and shall hold office during pleasure." Both phrases are used in section 64, which declares that " The Governor-General may appoint officers to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish." The use of both phrases in this section may be defended on the ground that the appointment of a Minister of State for the Commonwealth is necessarily a personal act of the Governor-General, and that the establishment of a Department of State of the Com- monwealth is a matter which comes within the rule of English constitutional law, that the acts of the Monarch which are not to be personally performed by him must be done in accordance with the advice of one or more GOVERNOR AND GOVERNOR IN COUNCIL. 291 of his Ministers who must accept the responsibility of it. But section 65 declares that " Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of pro- vision, as the Governor-General directs." This section clearly contemplates that the Parliament shall from time to time prescribe the number of Ministers of State for the Commonwealth and the offices which they shall hold, and that the Governor-General shall prescribe the offices to be held by them only so long as provision is not made by Parliament in regard to the matter. But as soon as the Governor-General had an Executive Council to advise him, the establishment of the several Departments of State of the Commonwealth was a matter which in accordance with the explicit declara- tion of section 64 was to be within the purview and control of the Governor-General in Council. The establishment of the several Departments of State of the Commonwealth necessarily includes the assignment of distinguishing names to them and the assignment of distinguishing titles to the Ministers who are to pre- side over the Departments ; and it is therefore evident that when section 65 mentions the Governor-General ib means the Governor-General in Council. These examples of the use of the two phrases " Governor- General " and " Governor-General in Council " in the Constitution of the Commonwealth show that it is open to some extent to the same criticism as that which has been made of the use of the two phrases " Gov- ernor " and " Governor in Council " in much of the legislation of the several States. [292] 14. THE PARAMOUNT LEGISLATIVE POWER OF THE IMPERIAL PARLIAMENT. The legislative ^g ^jje depositary and organ of the sovereign power power of the r ./ o or Sul^pa^a-"*" oi* til® whole British Empire, the Imperial Parliament throughout the possesses and frequently exercises with respect to the be°exero1"ed™"'^ whole Empire, or specified portions of it, a legislative in reference to . i i i i ■ i ■ i? the whole powcr which IS paramount to the local legislation oi Enipireortoany^ ■*• portion of it. ^^y other parliament in the Empire ; and it is expressly declared by the Act of the Imperial Parliament intituled " An Act to remove doubts as to the validity of colonial laws" (a), that — " Any colonial law which is or shall be repugnant to the provisions of any Act of Parliament " (i.e. the Imperial Parliament) " extending to the colony to which such law may relate, or repugnant to any Order or Kegulation made under authority of such Act, shall be read subject to such Act, Order, or Kegulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative." (a) 28 & 29 Vict. cap. 63, sec. 2. PARAMOUNT LEGISLATIVE POWER. 293 This paramount legislative power of the Imperial Par- ihippingS liament has been exercised from time to time for many different purposes. When it is exercised in such legis- lation as The Merchant Shipping Act 1894 (a) and the previous Acts of the same kind, the object is to establish an uniform law throughout the whole Empire in regard to particular matters. Sometimes it is exercised to aid the administration of the local laws of different portions of the Empire in which separate legislatures exercise plenary legislative powers, as in the case of The British Ascertainment"' Law Ascertainment Act (6), under which any superior *°'' court in any part of the Empire may direct a case to be prepared and submitted to any superior court in any other part of the Empire for the purpose of ascertain- ing the local law of the territory within which the court to which the case is submitted has jurisdiction, in order to enable the court transmitting the case to applj'^ such law in any action or proceeding pending in such last- mentioned court and in which such law has been pleaded. Legislation of this description does not raise any question as to the validity or repugnancy of any colonial law so long as an attempt is not made by any colonial parliament to restrict the operation of the Imperial law. But Imperial legislation which estab- lishes an uniform law relating to any matter through- out the Empire sometimes invalidates previous or subsequent legislation of a colonial parliament in par- ticular cases. In other instances the paramount legislative power 23 & 24 viot. cap. 122. of the Imperial Parliament has been exercised to confer a particular legislative power upon the local legislatures (a) 57 & 58 Viot. cap. 60. (6) 22 & 23 Vict. cap. 63. 294- PARAMOUNT LEGISLATIVE POWER of separate portions of the Empire, as in the ease of the Act 23 & 24 Vict. cap. 122, which enables the legislature of any portion of the Empire outside of the United Kingdom to enact laws similar to the Imperial Act 9 Geo. IV. cap. 31, sec. 8, under which any person may be tried and convicted and punished for murder or manslaughter in respect of any injury inflicted within the jurisdiction of the court before which the accused person is arraigned, although the death caused by the injury may have occurred beyond the territorial limits of the general jurisdiction of the court. 12 & 13 Viet. In several instances the paramount legislative power of the Imperial Parliament has been exercised to confer what may be described as an Imperial jurisdiction upon colonial courts, as in the case of the Imperial Act 12 & 13 Vict. cap. 96, which provides for the prosecution and trial in the colonies of offences committed within the jurisdiction of the Admiralty. The fourth section of that Act expressly provides that nothing contained in the Act shall affect or abridge the jurisdiction of the Supreme Courts of New South Wales and Van Diemen's Land as established under the Imperial Act 9 Geo. IV. cap. 83, by which jurisdiction had been previously con- ferred upon them in respect of offences committed within the jurisdiction of the Admiral. The Courts The exercise of an Imperial jurisdiction by colonial (Colonial) Juris- ir J J ^ diotionAot 1874. courts Under the authority of Imperial legislation frequently raised a question as to the punishments which such courts were authorised to inflict for off'ences committed out of the limits of their local jurisdiction, and in order to determine the question the Imperial Parliament enacted The Courts {Colonial) Jurisdiction Act 1874, which provides in the third section of it that — OF IMPERIAL PARLIAMENT. 295 " When, by virtue of any Act of Parliament now or hereafter to be passed, a person is tried in a court of any colony for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court, or if committed within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwith- standing : Provided always, that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England." Some of the provisions of The Merchant Shipping iheM.ercha.nt Act 1894 delegate a limited and prescribed legislative 189™'°^ power to the legislatures of British possessions outside of the United Kingdom in respect of particular matters mentioned therein. For example, section 264 provides that : — " If the legislature of a British possession, by any law, apply or adapt to any British ships registered at, trading with, or being at any port in that possession, and to the owners and 296 PARAMOUNT LEGISLATIVE POWER crews o£ those ships, any provisions of this part (ii.) of this Act which do not otherwise apply, such law shall have effect throughout Her Majesty's dominions, and in all places where Her Majesty has jurisdiction in the same manner as if it were enacted in this Act." The effect of this section is to confer upon all the legislatures in the Empire outside of the United King- dom a defined and prescribed legislative jurisdiction in relation to particular matters co-extensive with the territorial limits of the Empire, and with the extra- territorial jurisdiction of the Crown. Section 735 of the same Imperial Act provides that — " (1) The legislature of any British possession may bj' any Act or ordinance, confirmed by Her Majesty in Council, repeal, wholly or in part, any provisions of this Act (other than those of the third part thereof which relate to emigrant ships), relating to ships registered in that possession ; but any such Act or ordinance shall not take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed by the Act or ordinance for the purpose. '' (2) Where any Act or ordinance o.f the legis- lature of a British possession has repealed in whole or in part as respects that possession any provision of the Acts repealed by this Act, that Act or ordinance shall have the same effect in relation to the corresponding OP IMPERIAL PARLIAMENT. 297 provisions of this Act as it had in relation to the provision repealed by this Act." And section 736 provides that : — " The legislature of a British possession, may, by any act or ordinance, regulate the coasting trade of that British possession, subject in every case to the following conditions : — (a) The act or ordinance shall contain a suspending clause providing that the act or ordinance shall not come into operation until Her Majesty's pleasure thereon has been publicly signified in the British possession in which it has been passed. (b) The act or ordinance shall treat all British ships (including the ships of any other British possession) in ex- actly the same manner as ships of the British possession in which it is made. (c) Where by treaty made before the passing of The Merchant Shipping (Colonial) Act 1869 (that is to say, before the 13th day of May 1869), Her Majesty has agreed to grant to any ships of any foreign state any rights or privileges in respect of the coasting trade of any British posses- sion, those rights and privileges shall be enjoyed by those .ships for so long as Her Majesty has already agreed or may hereafter agree to grant the same, anything in the act or ordinance to the contrary notwithstanding." 298 PARAMOUNT LEGISLATIVE POWER In the case of the Commonwealth of Australia, all the powers conferred by the British Merchant Shipping Act 1894 upon the legislatures of British possessions will accrue exclusively to the Parliament of the Com- monwealth so far as those powers refer to matters which are within the exclusive legislative power of that Parliament in respect of trade and commerce with other countries and among the States and in respect of navigation and shipping under sections 51 and 98 of the Constitution of the Commonwealth. The restric- tions imposed upon the previous plenary legislative power of the Parliaments of the States by the Constitu- tion of the Commonwealth are imposed by the Imperial Parliament, and they must be held to extend to powers conferred by special legislation of that Parliament as well as to the legislative powers conferred in general terms by the several constitutions of the States. The Bankruptcy ^ very striking and peculiar exercise of the para- mount legislative power of the Imperial Parliament is found in section 118 of The Bankruptcy Act 1883 (a) which provides that : — " The High Court, the County Courts, the courts having jurisdiction in bankruptcy in Scotland and Ireland, and every British Court else- where having jurisdiction in bankruptcy or insolvency, and the officers of those courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the court seeking aid, with a request to another of the said courts, shall be deemed sufficient to enable the latter court to exercise, in regard to the (a) 46 & 47 Viot. cap. 52. OF IMPKRIAL PARLIAMENT. 299 matters directed by the order, such juris- diction as either the court which made the request, or the court to which the request is made, could exercise in regard to similar matters within their respective jurisdictions." The provisions of this section are sufficiently extraordinary to raise a doubt whether the draftsman contemplated the full effect of them. If the operation of the section had been confined to making all the courts in the Empire which have jurisdiction in bank- ruptcy auxiliary to any court in the United Kingdom in the administration of the Act, it would have simply conferred upon them an uniform jurisdiction for the more effectual administration of the same law. But the section goes far beyond that, and empowers and requires every court having jurisdiction in bank- ruptcy under the local law of any part of the Empire to administer, in regard to particular persons and in prescribed cases, specific portions of the local laws of other parts of the Empire ; and it imparts to a specific portion of the local legislation upon bankruptcy in every part of the Empire an extra-territorial efficacy in regard to all persons who are domiciled or ordinarily resident within the territorial limits of the jurisdiction of' the legislature from which in each case such local legislation has proceeded. Imperial legislation of this description exhibits in a strong light the exclusive sovereignty of the Imperial Parliament within the territorial limits . of the Empire and the absence of that attribute from all the other parliaments in the Empire. All the Acts of the Imperial Parliament which extend to the Commonwealth of Australia in common with 30Q PARAMOUNT LEGISLATIVE POWER other portions oi' the Empire proceed from the same legislative source as that from which the Constitution of the Commonwealth derives its authority, and they are equally binding with the Constitution of the Com- monwealth upon the Parliament of the Commonwealth and upon the Parliaments of the States, in the restric- tions they impose upon the legislative powers of those Parliaments, or upon any other governmental authority in the Commonwealth. It has been already observed that some of the Acts of the Imperial Parliament which extend to the Commonwealth of Australia confer special legislative powers either upon the Parliament of the Commonwealth or upon the Parliaments of the States ; but the majority of such Imperial Acts impose restrictions upon the legislative powers of the Com- monwealth and the States,not expressly,but by making, in reference to particular matters, legislative provisions which are paramount to any law which the Parliament of the Commonwealth or the Parliaments of the States can enact with respect to the same matters. All these Acts of the Imperial Parliament, whether they confer special powers or impose restrictions upon the Parlia- ment of the Commonwealth or upon the Parliaments of the States, are a part of the constitutional law of the Commonwealth. But they cannot be amended by the same authority as that by which the Constitution of the Commonwealth can be amended in accordance with the procedure prescribed by section 128 of the Constitution. The only authority by which tliey can be amended or repealed is the Imperial Parliament which enacted them except such of them as expressly empower colonial legislatures to alter them. But some of the Imperial legislation which applies to the States of the Australian Commonwealth maj' be superseded OF IMPERIAL PAELIAMBNT. 301 and displaced by legislation proceeding from the Par- liaments of the States, under the authority expressly conferred upon the local legislatures to make other provisions with respect to the matters in respect of which such Imperial legislation has made primary pro- visions. Such is the power conferred by the Imperial Act 9 Geo. IV. cap. 83, now known as The Australian ^apfss!^' Courts A ct 1 828, by which it was declared that all laws and statutes in force in England at the time of the pass- ing of the Act which were not inconsistent with the Act, or with any charter or letters patent or order in council issued under its authority, and which were applicable to the colonies mentioned in the Act, should be applied by the courts of those colonies, but that the local legis- latures of those colonies could from time to time declare whether or not any such laws or statutes were in force in those colonies, and could modify or alter any of them. This Imperial Act is still in force in the several States of the Commonwealch to which it applied when they were colonies ; and, in addition to the particular power conferred by it upon the local legislatures of the colonies to modify and alter the laws which it declared to be in force in those colonies, subsequent Imperial legislation has conferred in general terms upon the same legislatures plenary legislative powers under which any portion of the common law or any Imperial legislation in force in any State of the Commonwealth by virtue of 9 Geo. IV., cap. 83, may be altered or re- pealed by the Parliament of the State. But any Imperial legislation which applies to the States of the Common- wealth by explicit declaration of the Imperial Parlia- ment cannot be amended by the Parliament of the Commonwealth or. by the Parliaments of the States if the power to amend such legislation is not expressly 302 PARAMOUNT LEGISLATIVE POWER The paramount character of the legislative power of the Imperial Parliament prohibits any claim on the part of a local legislature to exercise its power as a delegate of any portion of the legislative power of the Imperial Parliament. conferred upon it or them by the Imperial Parliament either at the time of its enactment or by subsequent legislation. It is also to be noted that the amendment or repeal by the Imperial Parliament of any portion of the law of England which was extended to the Aus- tralian colonies by 9 Geo. IV. cap. 83, does not have any force within any State of the Commonwealth, if the Commonwealth or the State is not expressly included in the territory within which the amendment or repeal is to apply ; and all such laws remain in force in each State of the Commonwealth until altered or repealed by the Parliament of the State (a). The paramount character of the legislative power of the Imperial Parliament is the root of the doctrine enunciated by the Judicial Committee of the Privy Council in the cases of The Queen v. Burah (b), Hodge V. The Queen (c), and Powell v. The Apollo Candla Go. (d), which were cited in the chapter on the subject of the distribution of governmental powers under the Constitution of the Commonwealth. In those cases it was explicity declared that when the Imperial Parlia- ment establishes a local parliament or legislature in any part of the Empire it does not delegate any por- tion of its legislative power to the local parliament or legislature, and the local parliament or legislature is therefore not subject to any of the restrictions or limitations that apply to the exercise of delegated powers. The Constitution of the Commonwealth of Australia is an enactment of the Imperial Parliament, and if the powers conferred by it upon the Parliament (a) See Reg. o. Mount, 4 A.J.R., 38-42. (6) L.R. Appeal Cases, vol. 3, p. 889. (c) L.R. Appeal Cases, vol. 9, p. 117. (d) L.R. Appeal Cases, vol. 10, p. 282. OF IMPERIAL PARLIAMENT. 303 of the Commonwealth to make laws for the peace, order and good government of the Commonwealth in respect of trade and commerce with other countries (section 51), and with respect to navigation and shipping (section 98), were delegations of the legis- lative power of the Imperial Parliament with respect to those matters within the territory of the Common- wealth, then any legislation of the Parliament of the Commonwealth with" respect to any one of those matters which was in conflict with any previous legis- lation of the Imperial Parliament upon the same matter, such as The Merchant Shipping Act 1894, would prevail over the Imperial enactment in accord- ance with the rule that when two enactments of the same legislative power are in conflict the last in date prevails. But if this rule could be applied to abrogate the local authoritj^ of any enactment of the Imperial Parliament which was in conflict with the later legislation of any local parliament or legis- lature in any part of the Empire, the paramount character of the Imperial legislation would be destroyed. Hence it follows that the paramount character of the legislative power of the Imperial Parliament prohibits any claim on the part of any local parliament or legis- lature to exercise as a delegate of the Imperial Parlia- ment any of the legislative powers which the Imperial Parliament has conferred upon it. APPENDICES. 1. The Inclusion of the Crown as a Constituent Part of a Subordinate Parliament. The first section of the Constitution of the Commonwealth of Australia declares that " 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," (fee. ; and the second introductory section to the Constitution declares that the provisions of the Constitution referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom. In like manner The British North America Act 1867 declares in section 17 that "There shall be one Parliament for Canada, consisting of the Queen and an Upper House styled the Senate, and a House of Com- mons." In section 91, it declares that " It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada in relation to all matters, "ifec. ; and in accordance with this section all the Acts of the Parliament of the Dominion of Canada declare that " Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows." 20 306 INCLUSION OF THE GROWN AS A CONSTITUENT PART Appendix 1. The Constitution Acts of the States of New South Wales, Victoria, Queensland, and Western Australia also vest the power of making laws for those States in the Queen, " by and with the advice and consent of the Legisla- tive Council and House of Assembly" ; and the enacting words of the Acts of the Parliaments of those States run as follows : — " Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly," &c. But the enacting words of the Acts of the Parliament of New South Wales prior to the year 1855 declared that they were enacted " by the Governor, with the advice and con- sent of the Legislative Council," &c. ; and The Constitu- tion Act of the State of Tasmania provides, in section 3, that " The Governor and Legislative Council and House of Assembly together shall be called the Parliament of Van Diemen's Land," and the enacting words to the Acts of the Parliament of Tasmania run, " Be it enacted by his Excel- lency the Governor of Tasmania, by and with the advice of the Legislative Council and House of Assembly, in Parlia- ment assembled," &c. The Act of the Imperial Parliament which grants a representative Constitution to the Colony of New Zealand provides, in section 37, that " There shall be within the Colony of New Zealand a General Assembly consisting of the Governor, Legislative Council, and House of Represen- tatives," and the enacting words of the Acts of the Parlia- ment of the Colony of Nevv Zealand run, " Be it enacted by the General Assembly of New Zealand, in Parliament assembled, and by the authority of the same," &c. The Act which establishes the Constitution of the State of South Australia provides that in place of the Legislative Council then subsisting there should be " a Legislative Council and a House of Assembly, which shall be called ' The Parliament of South Australia,' " and the enacting words of OF A SUBORDINATE PARLIAMENT. 307 the Acts of the Parliament of South Australia are, " Be it Appendix 1. enacted by the Governor of the Province of South Australia, by and with the advice and consent of the Legislative Council and House of Assembly, in this present Parliament as- sembled," (fee. The Act of the Imperial Parliament (9 Geo. IV. cap. 83) intituled " An Act to provide for the administration of Justice in New SouthWales and Van Diemen's Land, and for the more effective Governjnent thereof, (fee," and now known as The Aus- tralian Courts Act 1828, provides, in the 21st section, that " The Governors for the time being of the said Colonies respectively, with the advice of the Legislative Councils to be appointed as aforesaid, shall have power and authority to make laws and ordinances for the good government and peace of the said Colonies respectively ;'' and the subsequent Act of the Imperial Parliament, intituled "An Act for the Government of New South Wales and Van Diemen's Land," (5 & 6 Victoria, Chapter 76), provides that "It shall be lawful for Her Majestj', by any such Letters Patent, to authorise any number of persons, not less than seven, including the Governor or Lieutenant-Governor of any such new Colony or Colonies, to constitute a Legislative Council or Legis- lative Councils for the same, &c., and that it shall be lawful for such Legislative Councils to frame and ordain all such ordinances as may' be required for the peace, order, and good government of any such Colony as aforesaid," &c. The later Act of the Imperial Parliament, 13 & 14 Victoria, Chapter 59, intituled " An Act for the better government of Her Majesty's Australian Colonies," enacts "That it shall be lawful for the Governors and Councils of the said Colonies of Kew South Wales and Van Diemen's Land and Victoria respectively from time to time by any Act or Acts to make such provision as to them may seem meet for the better administration of justice," ifec. ; and in Section 32 it provides that " It shall be lawful for the 308 INCLUSION OF THE GROWN AS A CONSTITUENT PART Appendix 1. Governor and Legislative Council of the Colony of New South Wales after separation from the sister Colony of Victoria, and for the Governors of the said Colonies of Victoria, Van Diemen's Land, South Australia, and Western, Australia after the establishment of Legislative Councils therein, by any Act from time to time to alter any provisions in force by this Act,'' &c. It will be. seen from these references that the first section of the Constitution of the Commonwealth of Australia which makes the Queen a constituent part of the Parlia- ment of the Commonwealth, and the section of The British North America Act 1867 which makes the Queen a con- stituent part of the Parliament of Canada, and the provisions of the Constitution Acts of the States of New South Wales, Victoria, Queensland, and Western Australia, which make the Queen a constituent part of the Parliaments of those States also, are, together with the enacting words of the Acts of those Parliaments, departures from the form of the legislation of the Imperial Parhament in the Acts originally establishing local Legislatures in the Australasian Colonies, and from the language subsequently used by the Legislature of New South Wales previous to the year 1855, and from the word always used by the Parliaments of Tasmania, New Zealand, and the Province of South Australia in the enacting words prefixed to the laws made by them ; and there are not wanting grounds for suggesting that these innovations are improper, . and have been made under a misapprehension of the constitutional relations of the Australasian Parliaments to the Crown and the Parliament of Great Britain and Ireland, and that the Acts of the Imperial Parliament and of the Australasian Parliaments which declare the Governor to be part of the local Parliament, and declare that the laws of such Parliaments are made by him with the advice and consent of the local Houses of Legislature, are correct in form and in accordance with the true relations of the OF A SUBORDINATE PARLIAMENT. 309 Colonial Parliaments to the Imperial Parliament and to the Appendix 1. Crown. The questions raised by these differences in the language of the legislation of the Imperial Parliament and in language of the legislation of the Parliaments of some of the States of the Commonwealth of Australia were raised and exhaustively discussed in America previous to the revolt of the thirteen united colonies and their final declaration of their independence of the British Crown. The first Continental Congress that assembled to speak and act on behalf of the thirteen colonies at the commencement of their quarrel with the mother country, passed a series of resolutions, the last of which declared it to be the indispensable duty of the colonies to endeavour by a dutiful address to His Majesty, and humble applications to both Houses of Parliament, to procure a repeal of the Act for granting and applying certain Stamp Duties, &c., and, in accordance with this resolution, petitions were for- warded to the King, to the House of Lords, and to the House of Commons, asking for a repeal of the obnoxious Act. But the colonists soon discovered that to recognise the legislative power of the British Parliament to make laws for the colonies, and to petition that Parliament on those grounds for a repeal of the Stamp Act, was totally incon- sistent with their famous doctrine of " no taxation without representation," and they accordingly soon advanced to the position that the British Parliament had no right to legislate for the colonies in any manner, and that the connection of the colonies with the mother country was maintained through the medium of the Crown alone, and that in regard to all purely colonial matters the Crown occupied the same position in relation to the Colonial Lei'islatures as it occupied in relation to the Imperial Parliament in regard to all matters within the limits of the United Kingdom of Great Britain and Ireland. The second Continental Congress accordingly ignored the two Houses 310 INCLUSION OF THE CROWN AS A CONSTITUENT PART Appendix 1. of the Imperial Parliament, and adopted an address to the King only, and when the colonies ultimately declared their independence they expressly renounced allegiance to the King alone, and described as " pretended acts of legisla- tion " the obnoxious laws of the British Parliament, for the repeal of which they had originally petitioned that Parliament as well as the King. The doctrine enunciated by the American colonies is perfectly consistent with the introduction of the Queen into the enacting words of the Acts of the Colonial Parliaments ; and, in the event of any dispute upon the question, would derive strong support from such use of the name of the Queen. But against such a theory of the connection of the colonies with the mother country Lord Mansfield vigorously protested in the House of Lords, and asserted " a complete, entire, and unconditional supremacy " of the British Parliament over the people of the American colonies, and declared that the claim of "no taxation without representation " was a renunciation of that supremacy. The Stamp Act was ultimately repealed, but the repealing Act was accompanied by a " Declaratory Act" affirming the power of the King in Parliament to bind the colonies and the people of America " in all cases whatsoever." This is the position maintained by the British Parliament with regard to all the dependencies of the Empire at the present day ; and although no attempt has been made by the mother country since the revolt of the American colonies to impose taxation on the dependencies of the Empire possessing Legislatures of their own, the supremacy of the Imperial Parliament is occasionally exercised by legislating for the colonies in common with the United Kingdom upon such subjects as the maritime laws, &c. This supremacy has been authoritatively confirmed in an Act of the Imperial Par- liament of so late a date as the year 1865, intituled "An Act to remove Doubts as to the Validity of Colonial Laws, OF A SUBORDINATE PARLIAMENT. 311 which provides that " Any Colonial law which is or shall be Appendix 1. in any respect repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate, or repugnant to any Order or Regulation made under the authority of such Act of Parliament, or having in the Colony the force or effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative." The Colonial Legislatures are therefore subordinate to the British Parliament, and it cannot but be derogatory, in some measure, to the dignity of the Crown, which is a part of the Imperial Parliament, to make it also a constituent part of any Parliament sub- ordinate to the Imperial Parliament. We know that if any portion of an Act of a Colonial Parliament should be con- trary to the provisions of any Act of the Imperial Parlia- ment on any subject upon which the latter had legislated for the whole Empire, the Colonial Act would be held to be void in the courts of the Colony in which it had been passed, as well as in the Courts in England. This was done in Canada in the year 1881, in the case of the ship Farewell, under the authority of the "Act to remove Doubts, dec," which has been already quoted (a). Another decision of a like character, and under the authority of the same Act, had previously been given by Mr. Justice Gray against the legality of the Chinese Tax Bill of British Columbia, in the year 1878. And if in such cases both Acts are declared to be made by the Queen, but in one case " by and with the advice and consent of the Lords Spiritual and Temporal and Commons," &c., and in the other ease " by and with the advice and consent of the Legislative Council and Legis- lative Assembly " of the colony, the Crown is placed in the undesirable and undignified position of being made a direct party to an invalid, and, in one sense an illegal and unconstitutional act, as well as being made to appear guilty [a) See 7 Quebec Law Reports, page 380. 312 INCLUSION OF THE UROWN AS A CONSTITUENT PART Appendix 1. of stultifying itself by declaring two contradictory laws to be in force at the same time in reference to the same subject- matter and in the same locality. These difficulties and inconsistencies are avoided when the Governor is made part of the Colonial Parliament, and the laws of that Parliament are declared to be enacted by him " with the consent and advice of the Legislative Council and Legislative Assembly " of the Colony, and the Crown is named only in connection with the exercise of executive power in the colony. As agent of the Crown for the exercise of executive functions, the Governor of the colony is subject to the instructions he receives from the Crown as well as to the provisions of any law of the Imperial or Colonial Parliament regulating the manner in which those functions shall be exercised. As a constituent part of a subordinate Colonial Parliament in respect of the legislation whereof the Crown has, by the express provision of the Imperial Parliament, the power of disallowance he may also be subject to instructions from the Crown as to the exercise of his legislative functions, and his assent to any Bill is always given subject to the power of disallowance vested in the Crown. There is, therefore, nothing incon- sistent in the Governor being made to occupy the duplex position of direct representative of the Crown for the pur- pose of executive acts, and a constituent part of a subordinate Parliament, all Acts of which are subject to disallowance by the Crown. The inclusion of the Queen in the Constitution Acts of the States of New South Wales, Yictoria, Queens- land and Western Australia as a constituent part of the Parliaments of those States, and the introduction of the Crown into the enacting words of the Acts of those Parlia- ments, seem to have been made in forgetfulness of the duplex position occupied by the Crown itself as the deposi- tary of the supreme executive power of the Empire, and at the same time a constituent part of the Imperial Parliament, or from a confused apprehension of the capacity in which OF A SUBORDINATE PARLIAMENT. 313 the Crown exercises its veto on Colonial legislation. It Appendix 1. cannot be denied that some authority for this inclusion of the Crown as a constituent part of the Parliaments of the States lastly above-mentioned, and for the introduction of the Queen instead of the Governor in the enacting words of the Acts of those Parliaments, is to be found in the language of the 31st and 32nd sections of Act of the Imperial Parliament, 5 & 6 Victoria, chapter 6, which speaks of Bills being pre- sented "for Her Majesty's assent to the Governor of the said Colony ;"' but the language of those secbions is in some measure inconsistent with the language of the sections which have been previously quoted from the same Act, in wluch the Governor is mentioned as a constituent part of the Colonial Legislature thereby established, and is incon- sistent with the true character of the power of disallowance conferred on the Crown with regard to the Acts of the Colonial Parliaments by section 32 of the same Act. The power of veto possessed by the Crown in respect of Bills passed by the two Houses of the Imperial Parliament is inherent in the Crown as a constituent part of that Parlia- ment, and may therefore be regarded as legislative in its character ; but the power of disallowance possessed by the Crown with respect to the Acts of Colonial Parliaments is a statutory power expressly conferred upon it by the Imperial Parliament, and it may therefore be properly re- garded as an executive power which is vested in the Crown as the supreme depositary of executive power in the Empire. "We know that the Crown 'originally exercised its legis- lative power in the English Parliament by initiating the laws enacted there (a), and this is the origin of the enacting words of the Acts of the Imperial Parliament. But the Crown's active intervention in the legislation of the English Parliament gradually shrunk to the exercise of the power of veto and the recommendation of Billsto appropriate a portion (a) See Hearn's Oovernment of England, chapter 2. 314 INCLUSION OF THE CROWN AS A CONSTITUENT PART Appendix 1. of the public revenue. The last mentioned part of the Crown's interposition in the legislation of the Imperial Parliament was at one time shared by the House of Commons, but a Standing Order of that House dating from the year 1713, and amended in the year 1852, has restricted it, since the first-mentioned date, to the Crown alone. The right of the Crown to veto Bills passed by both Houses of the Imperial Parliament has not been directly exercised for nearly two centuries. Nevertheless the right remains, and if it should be exercised at any time in the future, as it has been used in the past, it would be exercised upon the personal determination and responsibility of the occupant of the Throne, and not be upon the advice of the responsible Ministers of the Crown. But the power of dis- allowing Acts passed by Colonial Legislatures is always exercised by the Crown upon the advice of its responsible Ministers in England ; and all acts of the Crown performed upon such advice must, in accordance with the latest de- velopments of parliamentary government in England, be regarded as executive acts. To regard or describe them as legislative would be contrary to all the well settled and unreservedly-accepted doctrines of the constitutional func- tions and privileges of responsible Ministers in England at the present day. If the right to veto a Bill passed by the Lords and the Commons should at any future time be exer- cised by the Crown it seems impossible to suppose that it would be exercised upon the advice of the Ministers who • would occupy the position of responsible advisers to the Crown at the time. The only circumstance in which it has been suggested that the Crown's right to veto a Bill passed by the two Houses of the Imperial Parliament might be used again, would be at a time when the Crown found itself at variance with its responsible advisers. The suggestion of the use by the Crown of its power of veto in such circumstances is made by Mr. Disraeli in his Ufe of Lord George Bentinch in a passage quoted in Todd's Parliamentary Government in OF A SUBORDINATE PARLIAMENT. 315 England (a). It is as follows : — " As a branch of the legis- Appendix 1. lature, whose decision is final, therefore last solicited, the opinion of the Sovereign remains unshackled and uncom- promised until the assent of both Houses has been received. Nor is this veto of the Enghsh Monarch an empty form. It is not difficult to conceive an occasion when supported by the sympathies of a loyal people, its exercise might defeat an unconstitutional Ministry and a corrupt Parliament." Whether such a contingency as that contemplated by Mr. Disraeli could possibly occur under the present system of Cabinet Government which exists in the United Kingdom or not, it is very clear that the power of the Crown to veto Bills assented to by both Houses of the Imperial Parliament would never, while the present system of Cabinet Govern- ment remains, be exercised in its fullest measure upon the advice of the Cabinet of the day, because any Bill which would be absolutely vetoed by the Crown must either have been supported by the members of the Cabinet in Parlia- ment, or it must have been carried through Parliament in opposition to their wishes and against their votes, in which case they would resign before attempting to advise the Crown to override the decision of a Parliament which had been adverse to them. It has been already stated that the power to disallow Bills passed by Colonial Legislatures is a statutory power con- ferred by Acts of the Imperial Parliament, and is always exercised by the Crown upon the advice of its responsible Ministers in England. This at once distinguishes the veto in such cases from the veto which the Crown has a pre- rogative right to exercise in respect of Bills passed by both Houses of the Imperial Parliament j and the respective position and functions of the Crown and the Governor in relation to Colonial Parliaments are more intelligible, and will appear more consistent with the language of the Acts (a) 2nd edition, page 392. 316 INCLUSION OF THE CROWN AS A CONSTITUENT PART Appendix 1. of the Imperial Parliament establishingColonialLegislatures, and with the subordinate positions wtiich those Legislatures occupy, if the power expressly conferred by the Imperial Parliament on the Crown to disallow their Acts is regarded as an executive and not as a legislative power. There is one pertinent objection that can always be urged against regarding the Crown's power to disallow Acts of Colonial Legislatures as an execiitive act, viz., that there can be a negative as well as positive exercise of legislative power, as when one House of Parliament disagrees to a Bill passed by the other House, and that the veto of the Crown is a similar exercise of its legislative functions. But it must be also always remembered thatthepower conferred on theCrown by the Imperial Parliament to disallow Acts of the Colonial legislatures can be exercised any time within a period of two years after the Act has been passed and has been iu actual operation. This peculiarity of the power in question distinguishes it very much from the power of disagreement inherently possessed by the different branches of aLegislature in regard to Bills which remain only proposals for new legislation until all the constituent branches of the Legis- lature have concurred in them, and transforms it into somethingvery nearly approaching the power to repeal within a limited time an existing law without the concurrence of all the constituent branches of the Legislature which shared in the making of it. It is also to be noted that the British North America Act 1867 confers on the Governor-General of Canada the power to disallow any Act of a Provincial Legislature at any time within one year after it has received the assent of the Lieutenant-Governor of the Province. It will not be argued from this fact that the Governor-General of Canada is a constituent part of those Provincial Legis- latures of which, as in the cases of the Provinces of Ontario and Quebec, the Lieutenant-Governor is expressly declared by the British North America Act 1867 (sections 69 and 71), to be a part. But if the Governor-General of Canada is not a OF A SUBORDINATE PARLIAMENT. 317 part of each Provincial Legislature, then the exercise of his Appendix 1. power to disallow any Act of a Provincial Legislature must be an executive function. On the other hand, if it should be contended that he is a part of each Provincial Legislature, such a contention would involve the assertion that a Colonial Legislature might consist of four branches, and by parity of reasoning it might be equally well contended that the Crown, by virtue of its power to disallow any local legislation within two years after its enactment, is a fourth branch of each Australasian Parliament of which the Governor is made by statute of the Imperial Parliament a constituent part. Whether such a power of disallowance, or whether the power of veto in general, can be more properly described as legislative or executive, depends very much on the nature and extent of the powers and authority definitely allotted to the executive branch of the particular Government under consideration, and how far such a power may be regarded as necessary for the due preservation of other powers and functions belong- ing to the executive branch of that Government. Blackstone and Chitty, while describing the Crown's power to veto Bills agreed to by the Lords and Commons as a legislative power, regard it as being necessarily attached to the executive branch of the Government of England for the due protection and preservation of the strictly executive powers and privileges of that branch of the Government (a). {a) " It is highly necessary for preserving the balance of the con- stitution, that the executive power should be a branch, though not the whole of the legislative. The total union of them we have seen would be productive of tyranny ; the total disjunction of them for the present would in the end produce the same efifects by causing that union against which it seems to provide. The Legislative would soon become tyrannical by making continual encroachments and gradually assuming to itself the rights of the executive power. . . . . . To hinder, therefore, any such encroachments, the Sovereign is a necessary part of the Parliament : and, as this is the reason of his being so, very properly, therefore, the share of the legislation which the constitution has placed in the Crown consists in the power 318 INCLUSION OF THE CROWN AS A CONSTITUENT PART Appendix 1. Upon this view of the purpose and use of the veto power it might with equal propriety be regarded and described as a part of the executive power itself ; for whatever powers are conferred on any department of a Government for the due protection and preservation of the functions for the performance of which that department exists, or has been created, may surely be properly included among the distinctive and peculiar powers of that department. Many of the American commentators on the Constitution of the United States discuss the power of veto possessed by the President under that Constitution as an attribute of the executive department of the American Government. In this matter they are followed by Mr. Brj'ce, who regards the President as totally destitute of any legislative power, and as exercising the power of veto solely as an executive function. And in distinguishing the position of the King of England from that of the American President in regard to the veto power, he says, in his American Commonwealth {a), that " The King of England is a member of the English Legislature, because Parliament is in theory his Great Council which he summons and in which he presides, of rejecting rather than resolving ; this being sufficient to answer the end proposed." — Black-stone's Commentaries, by Kerr, Vol. I., p. 139. " The executive power could not exist if the .King had no share in the legislative authority ; which would in such case make rapid en- croachments on, and gradually assume, the reigns of government. The King is, therefore, very properly, a constituent part of Parlia- ment ; in which capacity he possesses the ineaiis of preserving inviolate his rights and prerogatives, as supreme executive magis- trate, by withholding his assent at pleasure, and without stating any reason, to the enactment of provisions tending to their prejudice. It is, however, only for the purpose of protecting the regal executive authority that the constitution has assigned to the King a share in legislation ; this purpose is sufficiently ensured by placing in the Crown the negative power of rejecting suggested laws. " — Chitty on Prerogatives of the Crown, p. 2. (a) Volume 1, pages 71 and 72. OF A SUBORDINATE PARLIAMENT. 319 hearing the complaints of the people, and devising legisla- Appendix 1. tive remedies," and that "the term 'veto power' does not happily describe his right of dealing with a measure which has been passed by the Council in which he is deemed to sit, though in point of fact he no longer does sit except at the beginning and ending of a Session." It is however, evident that a similar historical reason for regarding the right of the Crown to veto the Acts of a Colonial Parliament as a legislative power does not exist, because the Monarch never sat in person in any Colonial Legislature, and it would be scarcely consistent with a proper view of the dignity and exalted position, of the Monarch to make use of a fiction which would exhibit him as being a party to the Acts of a subordinate legislature any one of which might afterwards be disallowed by him in his executive capacity. Agreeably to Mr. Bryce's view of the position of the English Crown in relation to Parliament, everything done by or in the name of the Crown in initiating legislation would be an exercise of the Crown's legislative power. But Mr. Disraeli, in his Life of Lord George Bentinck, makes a statement, quoted with approval by Todd in his Parliamentary Governnent of England (a), that "no Minister of the Crown can introduce a measure into either House without the consent of the Crown," and " such consent is only given in the first instance in the executive capacity of the Sovereign." This statement extends the executive functions of the Crown much more across the boundary line dividing them from its legislative powers, than the foregoing contention regarding the power of disallowance vested in the Crown in regard to the Acts of Colonial Legislatures may be supposed to do. Probably, whichever of the two theories of the character of the Crown's power of initiating legislation and of its power of veto is (a) Second edition, volume 2, page 391. 320 INCLUSION OF THE CROWN AS A CONSTITUENT PART. Appendix 1. advocated will be found to involve some inconsistencies and illogical results, but the balance of argument appears to be in favour of making the Governor or Governor-General instead of the Crown, a constituent part of a subordinate Parliament. [321] The Power of the Crown to Disallow Australian Legislation. By the several Acts of the Imperial Parliament which have provided from time to time for the erection of local legis- latures in the several Australian Colonies, power is reserved to the Crown to disallow at any time within two years thereafter any Bill which has been passed by the local legislature and has received the Governor's assent (a). The same Imperial Acts also provide that when any Bill is pre- sented to the Governor for his assent he shall declare according to his discretion, but subject to the statutory provisions referring thereto, and to such instructions as may from time to time be given to him in that behalf by the Crown, that he assents to such Bill on behalf of the Crown, or withholds the Crown's assent to it, or that he reserves the Bill for the signification of the Crown's pleasure in regard to it. The Instructions which are issued to each of the Governors of the several States of the Commonwealth include specific directions as to the course to be followed by him in reference to several kinds of Bills which may be presented to him for the Crown's assent. But the instruc- tions which have been issued to the Governor-General of [a) See 5 & 6 Vic. chap. 76, 7 & 8 Vic. chap. 74 and 13 & 14 Vic. chap. 59. 21 322 POWER OP CROWN TO DISALLOW Appendix 2. the Commonwealth of Australia do not include any direc- tions in reference to the granting or the withholding of the assent of the drown to any Bill, and the matter is left entirely as it stands under section 58 of the Constitution, which provides that : — " When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. " The Governor-General may return to the House in which it originated any proposed law so presented to him, and may transmit therewith any amend- ments which he may recommend, and the Houses may deal with the recommendation." Section 59 provides that : — " The Queen may disallow any law within one year from the Governor-General's assent, and such disallowance on being made known hy the Governor-General, by speech or message to each of the Houses of The Parliament, or by Pro- clamation, shall annul the law from the day when the disallowance is so made known." And section 60 provides that : — " A proposed law reserved for the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of The Parliament, or by Proclamation, that it has received the Queen's assent." AUSTRALIAN LEGISLATION. 323 The reservation of a Bill by the Governor-General of the Appendix 2. Commonwealth, or by the Governor of a State, for the signification of the Crown's pleasure in reference to it, is a matter which is entirely in his own discretion, and it is seldom that the circumstances in which that discretion is exercised permit any comment or criticism upon it. But the action of the Secretary of State for the Colonies in regard to a Bill which has been reserved by the Governor has frequently been the subject of correspondence and discussion between the Colonial Office and the Ministers in the colony in which the Bill originated, and in the following correspondence, which took place in reference to a Bill reserved by the Governor of Tasmania, the question of the extent to which the local legislation of an Australian colony ought to be subject to disallowance by the Crown in view of the plenary legislative powers conferred by the Imperial Parliament upon the Parliaments of the several States of the Commonwealth is directly considered. FOREIGN COMPANIES BILL, 1895. Tasmania. No. 3. Downing-street, 3lst January, 1S96. Mt Lokd, I have the honour to acknowledge the receipt of your Despatch No. 44 of the 28th of September last, enclosing a Bill intituled " An Act to enable certain Foreign Companies to carry on Business and to sue and to be sued in Tasmania," which you had reserved for the signification of Her Majesty's pleasure on account of objections to Clauses 19, 20, and 21. I caused your Despatch to be referred to the Board of Trade, which, as you are doubtless aware, is the Department concerned with Joint Stock Companies, and I now enclose for communication to your Ministers a copy of a letter from that Department pointing out some weighty objections against the new principle of allowing payment in full to local creditors, to the injury of creditors outside the Colony, which is embodied in Clause 21. I concur in their view, and have decided to defer tendering any advice to Her Majesty with regard to the Bill until your Mi^iisters 324 POWER OF CROWN TO DISALLOW Appendix 2. have had an opportunity of considering this letter from the Board of Trade. With regard to Clauses 19 and 20, to which the Board of Trade also refer, there are no doubt special reasons for making Trustees and Executors' Companies deposit caution-money, as is proposed in these clauses ; but, if the deposit is to be applied solely to the benefit of the local creditors, who might thus gain payment in full or a larger dividend on winding up than creditors elsewhere, Clause 20 becomes open to the same objections of principle as Clause 21, and appears equally to require reconsideration. I have the honour to be, My Lord, Your Lordship's most obedient, humble Servant, J. Chamberlain. Governor the Right Honourable VisconNT Gobmanston, K.G.M.G., &c. Copy. R 22769. Board of Trade [Railway Department), 7 Whitehall Gardens, London, S. W. , \Oth January, 1896. Sir, With reference to your letter of the 4th December last (No. 19368/95), forwarding copy of an Act passed by the Legislature of Tasmania, intituled "The Foreign Companies Act,'' together with copy of a despatch by His Excellency the Governor of Tasmania relating thereto, I am directed by the Board of Trade to inform you that they have carefully considered Clauses 19, 20, and 21 of the Act, and I am to submit the following, observations thereon for the information of tlie Secretary of State. 1. Dealing, in the first place, with Clause 21, the Board of Trade concur in the opinion expressed by Lord Gormanston to the effect that this clause would prejudicially affect the rights of Her Majesty's subjects residing out of the Colony. Under the laws at present in force throughout the Empire, so far as the Board of Trade are aware, the right of all persons to associate together for trading purposes without distinction as to residence, and the right of the various classes of creditors to rank on equal footing without such distinction in the distributicm of the assets of a bankrupt company, partnership, AUSTRALIAN LEGISLATION. 325 or individual, are clearly recognised. But, if the clause in question Appendix 2. became law, a serious disability would be imposed upon the exercise of such rights by all persons residing outside Tasmania, which would probably result in a practical monopoly as regards the formation of companies, and in an undue preference in the distribution of assets in case of insolvency being established in favour of residents in the Colony. The interests of the trading community in the United Kingdom, and in all other British Colonies and Dependencies, might thus be prejudiced. 2. The Board of Trade are further of opinion that such legislation would also prejudice the interests of the majority of the residents in Tasmania, by preventing the free flow of capital into the Colony, thereby retarding the development of its resources ; and that any benefit which might accrue from the creation of a, local monopoly would be confined to those engaged in conducting joint stock enter- prise, and would be obtained at the expense of the general inhabitants of the Colony. 3. Further, if the principle contended for were admitted in the case of Tasmania, it would probably be difficult to resist similar legislation in the case of other Colonies, should they desire it ; while such enactments would not improbably lead to a demand for legis- lation in the United Kingdom to guard against the practice of Colonial Companies which were thus founded upon a monopoly coming to this country for the purpose of obtaining capital to be employed in the Colonies. It is hardly necessary to point out that such a result would not only be injurious to Colonial interests, but would tend to the erection of a barrier against free commercial intercourse between the various branches of the British Empire. 4. The Board of Trade also concur in the view expressed by the Governor of Tasmania, that there is no real analogy between restric- tions imposed by the Legislature on the conduct of the business of life assurance and similiar restrictions upon ordinary trading and banking business. Apart from the fact that Governments have found it necessary to enact special legislation with regard to the former, having regard to the special character of the business of life assurance, and to the need for protecting the interests of large masses of the population v/ho, without such legislation, have no adequate means for judging of the trustworthiness of such institutions, and who, owing to the long periods over which the risks extend, are practically powerless to protect themselves against reckless and imprudent management, it should be pointed out that a Foreign 326 POWER OF CROWN TO DISALLOW Appendix 2. Company engaging in the business of life assurance in Ta'smania is not likely to have any large amount of its funds invested in the Colony, and that the giving of a preference to the local creditors in the distribution of local assets is not therefore likely to confer any material advantage upon them : whereas, in the case of English trading, and more especially of English banking companies establish- ing themselves in Tasmania, the very nature of the business carried on by such companies implies that they would employ capital raised elsewhere for local purposes, and would thus, iinder the proposed legislation, afford to local creditors an altogether disproportionate share in the distribution of the company's assets in the event of liquidation. It is unnecessary for the Board of Trade to offer any opinion upon the policy of Section 11 of the Tasmanian ' ' Life Assurance Companies Act, 1874," which confers a preference on local creditors in the dis- tribution of the assets of a liquidating Assurance Company, beyond pointing out that it differs from English legislation, which in no case permits of a preference to English creditors, and that any justifica- tion for such a provision must be sought for in the special circum- stances affecting life assurance already referred to, and could not therefore, on grounds of analogy, be extended to similar provisions affecting ordinary trading and banking companies. 5. The considerations affecting Clauses 19 and 20 of "The Foreign Companies Act" are of a somewhat different character. Clause 19 applies exclusively to a foreign company carrying on business in Tasmania as a Trustee and Executors' Company, and requires a local deposit of £5000, which is apparently to be appropriated as a security for the payment of local liabilities, but which may be replaced at the option of the company by the acquisition and registration of " seoiired assets " within the colony of £15,000 ; and Clause 20 provides that such secured assets shall continue to be invested in Tasmania, and shall, in the event of the company being wound up, be available for the payment in priority of local claims. 6. No doubt the Secretary of State will decide how far the busi- ness of a " Trustee and Executors' Company" brings it within the category of companies carrying on a special business which justifies the application of special legislation in the interests of the public, and how far it is desirable in that case to distinguish betwixt com- panies having their head office and business in Tasmania, where they are subject to local supervision and control, and companies having their head office and the chief portion of their business elsewhere, AUSTRALIAN LEGISLATION. 327 and not therefore subject to such supervision and control. In the appendix 2. event of his coming to the conclusion that such companies fall within the special class referred to, then, on the analogy of the Tasmanian Life Assurance Act, there would appear to be no objection to the principle involved in these clauses, although it would be more in accordance with the general principles of legislation adopted through- out the British Empire to apply the provisions in question to all companies carrying on business in Tasmania without reference to the question whether their head offices were situated in Tasmania or elsewhere. 7. As further bearing upon this question, I am to enclose copy of an extract from the official report of a Judgment delivered in the Supreme Court of Adelaide by the Chief Justice of South Australia upon a claim, by local creditors of the Federal Bank of Australia, Limited, to a preferential treatment over creditors outside the Colony ; and in which the law of that Colony is not only stated to be opposed to such claims, but some of the arguments against the desirability of amending the law in the direction indicated are also pointed out. I have, &c. , COUETENAY BoYLE. The Under Secretary of Slate, Colonial Office. (Extract) R. 22,769. In the matter of the Federal Bank of Australia, Limited, Extract from a Transcript of the Official Report of the Judgment delivered in the Supreme Court at Adelaide, by His Honor the Chief Justice (Hon. S. J. Way, D.C.L.), on the hearing of an Application to determine the right of Foreign Creditors to an equal participation in the assets collected in the South Australian Colony. " It is the example of Brazil. The adjacent Republic of Paraguay has been thought a suitable field for carrying out certain social experi- ments, but I think that in South Australia we should require some- thing more definite on the subject before we come to the conclusion that the law in Brazil with respect to the rights of foreign creditors is desirable to be followed here. For example, as Mr. Symon has pointed out, the Federal Bank has about a million of Scotch money to carry on business, in Australasia. It is exceedingly unlikely that 328 POWER OF CROWN TO DISALLOW Appendix 2. * single sixpence of that money would have found its way to these southern countries if our northern friends had thought it possible that the local creditors would receive a preferential claim upon the assets for payment of their debts in the event of a compulsory wind- ing up of the institution to which their money was advanced. Further, it does not require a very powerful imagination to see that, quite apart from stopping the flow of capital into these Colonies, a provision of that kind might be locally disastrous, because, if it is the law of South Australia that the assets of a company are to be divided among South Australians, a law of that kind would probably be imitated in other Colonies, and it would not be to the interest of South Australian creditors, in the absence of local assets, to be shut out from participating in Victorian assets sufficient, it might be, to pay 20s. in the £." Transmitted to the Honourable the Attorney -General. Wm. Mooeb, for Premier, absent. 9th March, 1896. Perused and returned. See Memorandum forwarded herewith. A. Inglis Claek. 7th May, 1896. Attorney-OeneraV s Office, Hobart, llh May, 1896. Memorandum for The Honourable the Premier. I have perused the Despatch of the Right Honourable the Secretary of State for the Colonies to His Excellency the Governor in reference to the Bill, intituled " An Act to enable certain Foreign Companies to carry on Business and to sue and be sued in Tasmania,'' which was passed by both Houses of the Tasmanian Parliament last year, and which was reserved by His Excellency for the signification of Her Majesty's pleasure thereon ; also the communication from the Board of Trade to the Secretary of State for the Colonies upon the same Bill ; and I deem it to be my duty to make the following observations upon the objections urged by the Governor and the Secretary to the Board of Trade to Clauses 19, 20, and 21 of the Bill. 1. I adhere to the opinion which I expressed in the Memorandum I addressed to His Excellency in reference to the Bill when I trans- mitted it to him for his assent thereto on behalf of Her Majesty, which opinion was, that none of the provisions of the Bill could be properly regarded as coming within the purview of that portion of AUSTRALIAN LEGISLATION. 329 the Governor's Instructions which require him to reserve for the Appendix 2. signification of Her Majesty's pleasure any Bill by which the prop- erty or rights of Her Majesty's subjects residing out of the Colony could be prejudicially afifected, because the Bill expressly continued the existing law with regard to all British Companies now carrying on business in the Colony, aud, the operation of the Bill being necessarily confined to Tasmania, it is impossible that any of its provisions could prejudicially afifect rights which have never been acquired by companies that have no existence of any kind in the Colony. The argument that the Bill would place non-resident creditors of any British Company which might hereafter establish a, business in Tasmania in a different position from that which they would occupy under the existing law in relation to the distribution of the local assets of such a company in the event of it being wound up in consequence of its inability to pay its debts, and would there- fore prejudicially affect the rights of such creditors, could be urged with more or less relevancy and force against every Act of the Par- liament of Tasmania which has made the laws regulating the enforce- ment of claims against debtors and the acquisition and devolution and enjoyment of property within Tasmania different from the law of England and other portions of the Empire in regard to the same subjects. But the power to make such laws is clearly conferred upon the local legislature by the A ct of the Imperial Parliament for the better government of Her Majesty's Australasian Colonies (13° & 14° Vict. cap. 59),, and has been exercised by numerous Acts of the Tasmanian Parliament which have received Her Majesty's assent without question ; and any attempt to restrict that power in any particular by means of Her Majesty's veto cannot fail to be regarded with serious apprehension, not only by the people of Tasmania, but also by the people of all the other Australasian Colonies ; and I there- fore deem it desirable that the Honorable the Premier should forward copies of the Bill in question and of the Despatch of the Secretary of State for the Colonies thereon, and of this Memorandum, to the Governments of all the other Australasian Colonies for their ubn- sideration. 2. The Secretary to the Board of Trade seems to regard the existing rights of non-resident creditors in relation to the distribution of the assets of a foreign country in this Colony as if they constituted or were included in a special class of rights created or confirmed and guaranteed by a law operating throughout the Empire with a continuity and entirety of territorial authority similar to that possessed by laws expressly made by the Imperial Parliament for 330 POWER OF CROWN TO DISALLOW Appendix 2. the whole of Her Majesty's Dominions ; but no such law exists regulating the formation and dissolution of joint stock companies and the distribution of their assets among their creditors throughout the Empire ; and any attempt to assert the existence of such a law, and to enforce its observance in the Australasian Colonies by an exercise of the Royal prerogative of veto upon the acts of their Legislatures, would be clearly an attempt to curtail the jurisdiction now possessed and exercised by all the Australasian Parliaments upon that subject, and, therefore, a supersession pro tanto of the legis- lative authority solemnly conferred upon them by the Imperial Parliament, and which has always been regarded by the people of the Australasian Colonies as granted without any intention of abridgment in any future contingency. 3. The opinion of the Board of Trade, that such legislation as that proposed by the Bill in question would prejudice the interests of the majority of the residents in Tasmania by preventing the full flow of capital into the Colony, and thereby retarding the develop- ment of its resources, may be well founded ; but the Parliament of Tasmania, elected by the people of the Colony, ought to be the best judge of what is beneficial and what is detrimental to the interests of the people it represents, and I am not aware that the Board of Trade is in any better position than the local Legislature to arrive at a safe conclusion upon the matter. 4. The assertion of the Secretary of the Board pf Trade, that English banking companies establishing themselves in Tasmania would emplo}' capital raised elsewhere for local purposes, is directly contrary to fact in regard to the English banking companies hitherto established in Tasmania, and now carrying on business here. All such banks have made a constant practice of receiving at fixed deposits very large sums of money from persons resident in Tasmania and sending it outside the Colony for investment and their indebtedness to residents of the Colony has always been largely in excess of their assets in the Colony. 5. The extract from the Judgment of Chief Justice Way in the Supreme Court of South Australia, on the hearing of an ap- plication to determine the rights of foreign creditors to an equal ' participation in the assets of the Federal Bank collected in that Colony, clearly states the existing law upon the subject, and contains his own opinion as to the benefit of it in view of the commercial and financial interests that have taken root and grown up under it there. But I have already pointed out that the chief AUSTRALIAN LEGISLATION. 331 reason he gives for the beneficial operation of the existing law in Appendix 2. South Australia, viz. , the influx of foreign capital into that Colony through the medium of banking companies incorporated outside the Colony, does not apply to Tasmania, where the English banks have been the channels of a constant outflow of capital from the Colony. I may also observe, that the convenience or benefit of a law in regard to interests and conditions that have arisen under it is not a valid argument against an alteration of it, to which future com- mercial and financial transactions may be reasonably expected to adapt themselves in the future, as they have adapted themselves to the existing law in the past, so long as the existing law is preserved in regard to rights and interests that have arisen under it, as the Bill in question expressly provides shall be done. 6. The insular position of Tasmania, and the smallness of its population in comparison with the larger colonies on the Australian Continent, together with its proximity to them, and the very heavy customs duties which all of them, with the exception of New South Wales, have from time to time levied upon Tasmanian products, have created in this colony commercial and industrial conditions peculiar to itself ; and the present law regulating the distribution of the local assets of a joint stock company incorporated in the other colonies and carrying on business in Tasmania has been found from past , experience to enable such a company to remove out of the jurisdiction of our Courts, to the detriment of local creditors, assets in which those creditors believed that they had security for their claims against the company, and in view of which they gave credit to the company and afterwards refrained from taking proceedings to enforce payment of those claims prior to the commencement of proceedings for the winding up of the company in the colony in which it was incorporated. The necessity of an alteration of the law for the pro- tection of local creditors in such circumstances is a matter upon which the Tasmanian Parliament may legitimately claim to be the proper judge and the safest guardian of the interests of the people who elect it. I subjoin a copy of the Memorandum which I addressed to the Governor upon the Bill when I transmitted it to him for his assent last year. A. Inolis Clakk, A ttorney- General. 332 POWER OF CROWN TO DISALLOW Appendix 2. [copy]. A Bill to enable certain Foreign Companies to carry on Susinese, and to sue and be sued, in Tasmania. When this Bill was presented to the Governor in the first instance for the Royat Assent, a question was raised in regard to the opera- tion of the provisions of section 21 upon the local assets of certain Banking Companies which had been incorporated in the United Kingdom under Royal Charter or Act of the Imperial Parliament for the express purpose of carrying on business in Australasia, and His Excellency was of opinion that in regard to those and other similar Companies the provisions of section 21 might be held to come within the purview of that portion of his Instructions which refers to Bills by which the rights'or property of British subjects not resid- ing in the colony may be prejudiced, and the Governor was advised to send a message to the Houses of Parliament reoommendiug the insertion of a proviso which exempts all Companies incorporated in Great Britain or Ireland, and now carrying on business in Tasmania, from the operation of section 21. That proviso having been inserted, I am of opinion that the Bill in its amended form does not contain anything which prevents the Governor giving his assent to it con- sistently with his Instructions. Any British Company that may hereafter establish a business in this Colony will place itself voluntarily under the provision of tlie new law, and therefore cannot be said in the language of the Instructions, to be " prejudiced " by it. It is also to be observed that the Instructions refer in this con- nection to " any Bill of an extraordinary nature and importance," by which is evidently meant any Bill making a new departure from the ordinar}' and usual course of legislation ; but this Bill only extends to other Foreign Companies the same law which has been in force for many years in Tasmania and in tl|ie other Australasian Colonies in regard to Foreign Life Assurance Companies, and the same reasons which make it desirable to protect the local creditors of the last-mentioned companies to the full extent of the local assets of those companies make it_ equally desirable to protect the local creditors of other Foreign Companies to the same extent. For these reasons, I am of opinion that there is no objection to the Royal Assent being given to this Bill. (Sd.) A. Inglis Clakk. Attorney -OeneraVs Chambers, Hobart. 30th September, 1895. His Excellency the Governor of Tasmania, AUSTRALIAN LEGISLATION. 333 Attomey-OemraVs Office., Hobart, Gth June, 1896. Appendix 2. Memorandum for the Honourable the Premier. In re the Foreign Companies Bill. SiKCB I transmitted to the Honourablfe the Premier my previous Memorandum upon the correspondence which has taken place between his Excellency the Governor and the Secretary of State for the Colonies in reference to the Foreign Companies Bill, I have ascertained that The British Companies Act of 1886 of the Colony of Queenslandcontains a provision that all land held by any British Com- pany in that Colony in the event of the Company being wound up or made bankrupt shall be primarily liable for the paj'ment of debts incurred by the Company within the Colony. The principle of this provision is exactly the same as that of the provisions in our Bill to which the Governor and the Secretary to the Board of Trade have been pleased to take exception. > I also find that the assets of British Banking Companies in the Colonies uf Victoria and South Australia have been made primarily liable by the legislation of those Colonies for the satisfaction of the claims of a particular class of local creditors in the eventf of the Company being wound up or made bankrupt. (See Banks and • Currency Statute 1890, of the Colony of Victoria, and the previous Banks and Currency Amendment Statute 1887 of the same Colony, and the Banh Notes Security Act 1890 of the Colony of South Australia). These additional examples of similar legislation in other Australasian Colonies confirm the statement I have already made in regard to the bill now under consideration when I directed the Governor's attention to the legislation of all the Australasian Colonies in regard to Foreign Life Assurance Companies, — viz., that the Bill in question does not come within the purview of that portion of the Governor's Instructions which refers to " any Bill of an extraordinary nature," and they can only increase our surprise at the unusual action that has been taken in regard to it. A copy of the Governor's despatch which accompanied the Bill when he transmitted it to the Secretary of State for the Colonies for the signification of Her Majesty's pleasure thereon has not been forwarded to me with the other correspondence upon it. I am of 33-i POWER TO DISALLOW AUSTRALIAN LEGISLATION. AppKNDix 2. opinion that tlie Premier is entitled to be supplied with a copy of the Despatch. A. Ikglis Clark, Attoriiey-Gen&ral. (No. 24. ) (In continuation of Paper No. 24.) Tasmania. No. 22. Doivning-sireet, 7th October, 1896. My Lokd, I have the honour to acknowledge the receipt of your Despatch No. 24 of the 27th of June, with its enclosures, on the subject of ' ' The Foreign Companies Act," which you reserved for the significa- tion of Her Majesty's pleasure. The Bill will be submitted for the Queen's assent at the next meeting of the Privy Council. I retain my opinion as to the unsoundness of the principle involved in the clauses which have formed the subject of the recent corres- pondence ; but having explained to your Ministers , the objections which are entertained to the clauses in question, and having learnt that these objections do not alter the views of your Ministers, I shall advise Her Majesty to give her assent to the Bill. I have the honour to be, My Lord, Your Lordship's most obedient, humble Servant, Sblbokne, for the Secretary of State. Goveiiwr The Right Honourable Viscount Gormanston, K.G.M.G., &c. (335] The Commonwealth and the Judicial Committee of the Privy Council. After the Bill to establish the Commonwealth of Australia had received the approval of a majority of electors in each of the colonies in which the Bill had been previously sub- mitted to the popular vote and had been transmitted to England for enactment by the Imperial Parliament, the only portion of it that elicited discussion either in England or in Australia was the provision that prohibited any appeal to the Crown in Council from any judgment of the High Court " in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the . public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved." The advocates and supporters of this restriction of the right of appeal to the Crown in Council were in perfect accord with the opponents of it in regard to the benefit of securing uniformity of judicial declaration and interpretation of.law throughout the Commonwealth in respect of all laws that were common to all the States. But when the advocates of an unrestricted right of appeal to the Crown in Council from all judgments of the High Court asserted that not only ought provision to be made in the Constitution for uniformity of declaration and interpretation of law through- 336 THE COMMONWEALTH AND THE JUDICIAL Appkndix 3. out the Commonwealth, but that the Constitution should provide as far as possible for the continuance of " unity of law over the whole Empire," they argued for the mainten- ance of something that never had existed, and for something which the establishment of the Commonwealth of Australia could not produce. Unity of law cannot exist without unity of legislation ; and within the British Empire there are upwards of a score of separate legislatures competent, and frequently compelled by local circumstances, to make divergent and contrary laws upon many of the subjects that supply questions for judicial determination. Within the United Kingdom itself two distinct bodies of law are in force on the opposite sides of the river Tweed ; and if a separate court of final appeal existed in Scotland for the determination of all questions of purely Scotch law, neither the unity of the Empire nor imperial interests could "be detrimentally affected by its decisions. A very practical and substantial objection to any right of appeal to the Crown in Council from appellate judgments of the Court of final resort in Australia is the increase in the delay and cost of litigation that would be involved in the addition of another tribunal to the several courts before which a litigant may have been previously compelled to appear ; and the Bill prepared by the Convention of 1891, in accordance with the concurrence of the majority of the Convention upon the validity of this objection, prohibited all appeals to the Crown in Council from appellate judgments of the Supreme Court of the Commonwealth except in cases in which the public interests of the Commonwealth or of any State or other part of the Crown's Dominions might be con- cerned, in which cases the Bill provided that the Crown could grant special leave to appeal to the Privy Council. But until the Parliament of the Commonwealth should have abol- ished the existing right of appeal to the Crown in Council from judgments of the Supreme Courts of the several colonies, the Bill of 1891 allowed a litigant in the Supreme COMMITTEE OP THE PRIVY COUNCIL. 337 Court of any State to appeal immediately to the Crown in Appendix 3. Council if he chose to do so • but it precluded any inter- mediate appeal to the Supreme Court of the Commonwealth with an ultimate appeal to the Privy Council. The assertion which was frequently made in the course of the discussion upon the question of the right of appeal from judgments of the High Court, that to refuse to litigants in the Supreme Court of any State the right of such a double appeal would be to dispossess them of a right enjoyed by all the other subjects of the Queen in all parts of the Empire outside of the Commonwealth, is as incorrect as the assertion made by the late Mr. Justice Richmond of New Zealand, that the establishment of a court of final resort in Australia whose decisions would not be subject to review by the Judicial Committee of the Privy Council would degrade the Australian courts by causing them to " sink from the position of Imperial to merely local tribunals." So long as Australia continues to be a portion of the British Empire, and subject to the paramount authority of the British Parliament, every court in Australia will derive its authority from that Parliament, either directly, as in the case of the High Court of the Common- wealth, or indirectly through local legislatures which exer- cise such legislative powers as that Parliament has conferred upon them. If the right of litigants to appeal from the judgments of a colonial court to the Judicial Committee of the Privy Council is necessary to make the colonial court an Imperial tribunal, then in every case in which such right of appeal does not exist, in consequence of the small- ness of the value of the subject matter of the litigation, the court ceases for a time to be au Imperial tribunal and becomes purely local in its character. The prerogative right of the Crown to grant special leave of appeal in such cases does not preserve the imperial character of the court in any greater degree than it is preserved by the power of the British Parliament to intervene with some other mode 338 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. of redress. To seek redress from either source is to invoke the intervention of an authority which is an immediate organ of the sovereign power of the Empire. In the one case redres^^aijild be administered by legislation and in the other it is granted in accordance with existing law ; but in neither case is the authority which is invoked under any legal obligation to act ; and when the Crown grants special leave to appeal, it exercises the residue which it retains of the original and inherent judicial authority which it possessed before courts were erected and judges were appointed to act in its name. The fact that this residue of the original and inherent judicial authority of the Crown is now exercised by a Committee of the Privy Council does not remove the Crown in such a case from the position of an immediate organ of sovereign power, any more than the exercise of the prerogative power of mercy and pardon by a responsible Minister removes the Crown from that position. In the last-mentioned case the sovereign power through its immediate legislative organ has prescribed the punishment and only the same power can release a convicted culprit from it ; and therefore the authority which at its own discretion, and without the co-operation of any other organ of the sovereign power, releases the culprit from the penalty of his crime, cannot be anything less than an immediate organ of that power. It is to the same immediate organ of the sovereign power of the Empire that application is made for special leave to appeal from the judgment of a colonial court, and so long as the courts of the Commonwealth of Australia shall continue to be subject to the control of the sovereign power of the Empire , as exercised through the , immediate legislative organ of its will, their judgments must be declarations of its will, whether it makes them subject to review by the Crown as the immediate judicial organ of its will or not. The further assertion of the late Mr. Justice Richmond that a colonial court whose decisions would not be subject COMMITTEE OF THE PRIVY COUNCIL. 339 to appeal to the Crown in Council could not exercise juris- Appendix 3. diction over the Governor of the colony in which the court was established, in order to determine whether any official act done by him was within the limits of his authority, implies that the powers and jurisdiction of any colonial court established under the authority of any Act of the British Parliament, or of any Charter or Royal Letters Patent, are extended beyond the definition and description of them expressly inserted in such instrument, by force of the provision which confers upon litigants a right of appeal from the judgments of the court to the Crown in Council ; and that the excision or abrogation of the right of appeal would reduce the powers and jurisdiction of the court below the express definition and description of them contained in the instrument. Surely such an assertion must have been made in a moment of forgetfulness and under a temporary misapprehension of the status of colonial courts deriving their existence directly from Imperial authority. If an universal right of appeal to the Crown in Council was possessed by every litigant in every court of the Empire, irrespective of the nature of the litigation or the value of the subject matter, there would be some force in the argument that to remove that right from the litigants in some of the courts of the Empire would be to derive these courts of a feature which marked their Imperial origin and character ; but the alleged universal right of appeal to the Crown in Council possessed by all its subjects in all parts of its dominions is as mythical as the alleged unity of law over the whole British Empire. The inhabitants of England, Scotland, and Ireland do not possess it. Their final court of appeal is the House of Lords, whose appellate jurisdiction is not exercised as a part of the Royal Prerogative, as is the appellate jurisdiction of the Privy Council. In the course of the discussion which took place in Australia upon the proposed restriction of the right of 340 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. appeal to the Crown in Council the Chief Justice of South Australia (Sir Samuel Way) referred to what he described as "the familiar arguments as to the necessity of maintainino- uniformity of judicial decisions throughout the Empire." The practical necessity of maintaining uniformity in the decisions of all the courts which administer in the same territory the law of a single legislative authority is too obvious to require any argument to support it. But the necessity for uniformity in the decisions of courts which administer divergent as well as similar laws in separate territories within which distinct legislative author- ities enact the laws, is not an equally obvious and incontestable proposition. Nor is uniformity in ' judicial decisions an obvious and indisputable desirability in the- case of two communities which may have to-day only one legislative authority to make laws for them, but in which two distinct bodies of law of different historical origins are in force. If in such a case there has been long acquiescence in divergent applications of substantially similar legal doctrines in the two communities, the subsequent enforce- ment of uniformity in the application of them might be very disturbing in its effects upon one or both of the communities and very detrimental to the sentiment of respect for the administration of the law. Every successful attempt by a supreme appellate tribunal in such a case to enforce uni- formity of judicial decisions upon the two communities will necessarily diminish in one or both of them that confidence in the certainty of its law which is of infinitely more value to any community than the uniformity of its jurisprudence with that of another community. We have testimony of one of the most eminent of living jurists in England that on one occasion, at least, the House of Lords, in order to make the jurisprudence of the two countries uniform, forced upon the reluctant courts of Scotland a doctrine which was not supported by any judicial decisions in that country and which had only a short line of judicial COMMITTEE OP THE PRIVY COUNCIL. 341 authority to sustain it in England (a). Within twelve Appendix 3. years afterwards, the rule which, as Lord Chelmsford admitted (6), eminent Scotch Judges had declared to be the law of Scotland, but which the House of Lords had declared not to be the law of that country, was made the law of the whole United Kingdom of Great Britain and Ireland by legislation (c). In cases which involve the interpretation of an Act of the Imperial Parliament which is in force over the whole of the Empire, such as The Merchant Shipping Act, the argument for uniformity of judicial decisions in all the courts of the Empire is very strong. But it is highly improbable that in any such case there would be a divergence in the decision of the High Court of Australia from the decisions of the courts in England, and the simple possibility of such a contingency is not sufficient to decide the whole question of the desirability of investing the High Court of Australia with finality of jurisdiction. In the United States of America the Supreme Courts of the different States have given divergent interpretations of similar laws and have made divergent declarations of the common law in relation to similar facts ; but the Federal Supreme Court has never attempted to enforce uniformity of decision in the courts of the several States when it has been required to review divergent judgments from different States, and the divergence in the judgments has not involved the interpretation of the Constitution or of an Act of Congress. There may be some inconveniences attending this practice in the United States, but a compulsory uniformity of judicial decisions in all the States would have (a) See Pollock on Tortu, 5th ed., p. 93; also Essays in Juris- prudence and Ethics, p. 115. (6) Wilson V. Merry, L.R. 1 So. Appl. Cases, p. .326. (c) 43 & 44 Vic. chap. 42. 342 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. retarded that expansion of legal doctrines to meet the exigencies of social and industrial development which has marked the decisions of the Ai^erican courts and which, as a result of the existence ofseparate courts of final resort administrating the English common law, has aided the elucidation and application of its principles in its original home ill the mother country and in the colonies to a much greater extent than American decisions subject to review by an appellate tribunal in England would have contributed to the same process. For a long time after the establishment of the indepen- dence of the United States the bench and bar in England seemed to deliberately ignore the study and application of the principles of the English common law that were being daily made in the American courts, and to prefer to seek assistance in the solution of new problems in jurisprudence from the law and practice of any European nation rather than among their kin across the sea. But the erudition and intellectual power of Story and Kent at last compelled recognition from the courts and lawyers in England, and the reports of the cases heard 'and decided by the English courts during the last fifty years abound in citations of American authorities. In the case of Steel v. Dixon (a) Fry, L. J., said that in coming to the conclusion at which he had arrived in that case he was much strengthened by the American cases which had been cited at the bar. As early as the year 1837 we find the court of Queen's Bench following the lead of American decisions on a question that had not been previously decided in England (b). A few years earlier the same court had decided a question in the law of marine insurance upon which there (a) L. R. 17 Ch. Div. 825. (b^ See Beverley v. The Lincoln Gas Light and Coke Co., 6 A. &E., p. 829. COMMITTEE OF THE PRIVY COUNCIL. 343 was not anj' previous reported authority (a), and a short Appendix 3. time afterwards Mr. Justice Story sitting in an American court decided the same question in a contrary direction. When Lord Denman, C. J., who had delivered the judgment in the English case, read Story's judgment he said that it would "at least neutralize the effect" of the English decision and induce the English courts "to consider the question as an open one " (6). If the decision of the American court had been subject to review by an appellate court in England, the previous decision of the court of Queen's Bench would have been an authority from which the American court would have found it as difficult to dissent as an Australian court would find it to be in like circumstances, and the strong probability is that Story's powerful argument in support of the opposite view would never have been delivered. In delivering judgment of the court in the case of Beverley v. The Luicobi Gas Light and Coke Co., Mr. Justice Patteson said that there were "obvious circumstances" which justified the American courts in advancing with a somewhat freer step to the discussion of ancient rules of the common law than would be proper for the courts in England ; and the same statement can be made with equal truth and force in regard to a modification of the ancient rules of the common law by the courts in Australia. But there is not any guarantee that those " obvious circumstances " will always be visible to a tribunal at the other side of the world, or that it will always properly appreciate the consequences of a rigid application to them of an ancient rule of law. On the contrary, if the members of that tribunal attach the same urgent importance to a compulsory unity of law for the whole Empire as the Australian advocates of it have attached to it, they will deliberately disregard any local (a) De Vaiix v. Salvador, 4 A. & E., p. 420. (6) See Life of Story, vol. 2, p, .379. 344 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. circumstances that may suggest the utility of a divergence in the application of the rules and doctrines of the common law in Australia from the uniform course of judicial decisions in England. Only absolutely beneficial results could demon- strate the wisdom and justice of following such a course. But unity of law, like all other human institutions, is subject to limitations in its capabilities of beneficial service, and if these are ignored and it is regarded as a fetich which has a mysterious efficacy to prevent the evolution of such distinc- tive conditions in different portions of the Empire as would otherwise arise and justify variations in the application of ancient rules and doctrines of social conduct and legal liability, the result will be more injurious than beneficial to the community in which it will become visible. The illustrations afforded by American decisions of the contributions which may be made to the more perfect elucidation and application of legal rules and principles by the existence of different courts administering homogeneous bodies of law in different territories, and not under the control of any appellate tribunal having authority to make their judgments uniform, are not confined to cases where divergent decisions have been given. The most competent court may fail in an attempt to extract the true rule or doctrine from a number of previous decisions scattered over a long period of time, or may fail to give the best and truest reasons for its own decision in a case of first impression; but when the judgment of a court of final resort has been delivered, with reasons -for it, those reasons will be repeated for a long period of time in reference to every new set of facts to which the rule of law expressed in the judgment is applied, although in many cases they may be manifestly inadequate to support the rule. But another independent court of final resort may subsequently give the best and truest reasons for adopting the rule, and thereby secure a more discriminating and satisfactory application of it in future cases. An illustration of a contribution of this COMMITTEE OE THE PRIVY COUNCIL. 345 character made by an American court to the elucidation and Appendix 3. application of a doctrine of the English common law is furnished by the history of judicial decisions in England upon the question of the liability of a master for injuries received by one of his servants through the negligence of another servant employed by the same master. The first reported decision of an English court upon this question is the judgment in the case of Priestley v. Fowler (a), and the reasoning upon which it was based was subsequently regarded as not entirely satisfactory. But a few years later a similar decision was given by the Supreme Court of Massachusetts, in a judgment which Sir Frederick Pollock characterises as " the fountain head of all later decisions " upon the question, and which the President of the Probate and Admiralty Division of the High Court of Justice in England has described as " the great judgment of Shaw, C. J., of Massa- chusetts, which no doubt materially influenced the House of Lords in reversing the decision of the Court of Session " in the case of Bartonshill Coal Co. v. Reid (b). The importance attached to the judgment of the American court by the House of Lords in the case above mentioned is proved by the fact that the judgment is inserted in full in the volume of the official reports which contains the judgment of the House of Lords in which the judgment of the American court is mentioned (c). One of the observations made by Sir Samuel Way was that " it is not easy to understand what constitutional questions arising in Australia will not be as intelligible to judges experienced in the varied laws of all parts of the Empire as to judges with an exclusively Australian training." It is not to be supposed that he is prepared to say that if the Judicial Committee of the Privy Council [a) 3. M. & W., p. 1. (6) See The Petrel, L.R.P.D., 1893, p. 323. (c) See Macqueen's Scotch Appeals, vol. 3. 346 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. could have been made the final court of appeal for the United States after they became an independent nation it would have proved so good a tribunal for the interpretation of the American Constitution as the American Supreme Court under the lead of Chief Justice Marshall proved itself to be. But under the Constitution of the Common- wealth of Australia questions will arise for judicial deter- mination which will be as foreign to the experience of judges with an exclusively English training as any of the questions that have arisen under the Constitution of the United States for decision by the Supreme Court of that country have been. It cannot be disputed that in all the depart- ments of English law which are represented in the large majority of the cases which are decided in the English courts the active members of the English bar obtain much more experience than the lawyers of Australia, and that such wider experience produces more perfect masters in each of those departments. But in the interpretation of the Constitution of the Commonwealth of Austraha the members of the bar in England would have only the small amount of practice which would arise out of appeals from the judgments of Australian courts. The larger experience in the constitutional law of the Australian Commonwealth will be obtained by Australian lawyers, and the experts and masters in it will be found among them. An example of the manner in which lawyers in England, whose training and experience in the consideration and application of questions of constitutional law have been acquired exclusively in the United Kingdom, may be expected to treat questions involving an interpretation of the Constitution of the Commonwealth of Australia, is exhibited in the Letters Patent which purport to create the office of Governor-General of the Commonwealth, and in the Commission which purported to empower the Duke of Cornwall to open the first Parliament of the Commonwealth. The question of the legality of the COMMITTEE OF THE PRIVY COUNCIL. 347 Letters Patent has been discussed in the chapter on the Appendix 3. Governor-General (a). In the Commission under which the Duke of Cornwall purported to open the first Parliament of the Commonwealth, His Majesty the King declares that " We ... by the advice of our Council, do give and grant, by the tenor of these presents, unto the said George Frederick Ernest Albert, Duke of Cornwall and York, full power in our name to begin and hold the first Parliament of our said Commonwealth of Australia, and to open and de clare and cause to be opened and declared the causes for holding the same, and to do everything which for Us and by Us shall be therein done." Section 61 of the Constitution of the Commonwealth declares that " The executive power of the Commonwealth is vested in the Queen, and is exercisable by the Governor-General as the Queen's representative," and section 5 provides that " The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit." If the opening of the Parliament of the Com- monwealth is an exercise of the executive power of the Commonwealth, then it is exercisable by the Governor- General only under section 61. If it is a part of the power specially conferred upon the Governor-General by section 5i then it is equally exercisable by the Governor-General only. In either aspect of the matter, and in any other possible aspect of it, the Duke of Cornwall purported to open the Parliament as the representative of the Crown. But section 2 of the Constitution of the Commonwealth declares that " A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth," and the Constitution does not provide for the presence of two representatives of the Crown in the Commonwealth at the same time, each of whom shall perform executive or ad- ministrative functions, or exercise any portion of the royal prerogative in the Commonwealth, under a separate Com- (a) Pages 52-56. 348 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. mission granted directly by the Crown. When the Duke of Cornwall purported to open the first Parliament of the Commonwealth, the Governor-General was present, and his Commission was in full force, and therefore he alone could legally act as the primary representative of the Crown in the Commonwealth in the exercise of any power vested in the Crown's representative in the Commonwealth. The Crown is under the law and is, therefore, bound by the provisions of the Constitution of the Commonwealth. But the law ofiicers of the Crown in England who advised the King to sign the Commission granted to the Duke of Cornwall seem to have advised His Majesty that he had some indefinable prerogative right to sign it, and to disregard the express provisions of the Constitution of the Common- wealth in the matter. Such advice is not a hopeful augury of the manner in which the provisions of the Constitution of the Commonwealth will be interpreted by the majority of the members of the Judicial Committee of the Privy Council (a). In the course of his criticisms of the proposal to establish a court of final appeal in Australia under the Bill adopted by the Convention of 1891, the late Mr. Justice Richmond made the following valuable observations. " The public is more interested than it knows,'' said he, "in maintaining the highest scientific standard in the administration of the law. The intellectual interest thus created in the profession is one of the best guarantees for purity of administration. Thoroughbred lawyers are supremely anxious to be right in their law. They may not always succeed in freeing them- selves from class prejudices and party ties, but their interest (a) The first Parliament of the Commonwealth was legally and properly opened by the Governor-General on the day immediately following the day on which the Duke of Cornwall performed the ceremony by which he purported to open the Parliament xmder the authority of his Commission. COMMITTEE OF THE PRIVY COUNCIL. 349 in abstract law makes them generally incapable of showing Appendix 3. favour to individuals." To these pregnant words I think that I may safely add the statement that a most effective stimulus to the production of the best and highest work a man can do is a knowledge that for good or ill it will take its place among the permanent facts of the world's history and reflect upon him perennial honour or discredit. N"o reason has ever been suggested why this stimulus should not operate upon men when they are engaged in the per- formance of such momentous work as the ultimate declaration and interpretation of the laws by which a community is held together in peace and order. All the arguments that have been used to extol the merits of the judges who con- stitute the courts of final appeal in England imply that this stimulus is not inoperative upon them ; and no reason can be given why it should not operate and produce like results upon judges laden with work of equal magnitude in Aus- tralia. The exercise of a final jurisdiction by a competent court whether in England or Australia will at all times be a constant provocative to the members of it to make a close investigation of all alleged and apparent authority and a careful application of fundamental principles ; and if the existence of an independent court of final resort in Aus- tralia were to produce divergences from the decisions of the courts in England, it may be confidently expected that such divergences would be capable of justification and not without benefit to the Australian people. Instead of producing uniformity of law throughout the Empire, the appellate jurisdiction of the Judicial Committee of the Privy Council in respect of the judgments of colonial courts has repeatedly produced divergences in the declaration of the common law and in the interpre- tation of statute law in different parts of the Empire. In February, 1869, an appeal from a judgment of the Supreme Court of Hong Kong in the case of Rodger v. The Comptoir d' E SCO m.j)td de Paris was heard by the Judicial Committee 350 THE COMMONWEALTH AND THE JUDICIAL Appkndtx 3. of the Privy Council and the judgment of the colonial court was reversed (a). The question involved in the case was the right of a transferee of bills of lading for valuable con- sideration to defeat an unpaid vendor's right of stoppage in transitu. The appeal was heard by a bare quorum of three members of the Committee, and their decision was that a pre-existing debt was not a valuable consideration for a transfer of bills of lading and an assignment of the goods to which they referred. In May, 1877, the same question was raised before the Court of Appeal in the Queen's Bench Division of the High Court of Justice in the case of Leask v. Scott Brothers (6), and that Court decided that the transfer of a bill of lading for valuable considera- tion to a bond fide transferee defeats the unpaid vendor's right of stoppage in transitu although the consideration was past and not given at the time the bill of lading was handed to the transferee. The contrary decision of the Judicial Committee of the Privy Council in the appeal case from Hong Kong was strongly pressed upon the Court, but the Court refused to follow it ; and the judgment of Lord Bramwell contains a trenchant criticism of the rejected decision, which he describes as " a novelty opposed to what may be called the silent authority of all previous judges who have dealt with the subject." Another illustration of the divergences in judicial declarations of the common law in different parts of the Empire which have been • produced by the appellate jurisdiction of the Privy Council is, afforded bj' the case of The Victorian Railway Commissioners v. Coultas and Wife, (o) which was an appeal from a judgment of the Supreme Court of the Colony of Victoria. The respondents had obtained a verdict for substantial damages in the colonial (o)L.R. 2P.C., 393. (5) L.R. 2 Q.B.D., 376. (c) L.R. Appl. Cases, vol. 13, p. 222. COMMITTEE OF THE PRIVY COUNCIL. 351 court for injuries sustained by them through the negligence Appendix 3. of a servant of the Victorian Railway Department in opening a gate upon a railway crossing when a train was approaching and thereby inviting the plaintiffs to pass over it in their buggy. There was not any actual impact of the train with the buggy, but the danger to the plaintiffs was so imminent, and their escape so narrow, that the wife received such a severe nervous shock as to induce a severe illness of a very critical character. The Pull Court in Victoria decided that actual impact of the train was not necessary to enable the plaintiffs to recover compensation for the injuries they had received. The Judicial Committee of the Privy Council reversed the judgment of the Supreme Court of Victoria and thereby deprived the plaintiffs of the benefit of their verdict and made them pay the costs of the appeal. The judgment of the Judicial Committee of the Privy Council in this case was brought under the notice of the Court of Appeal of the Queen's Bench Division of the High Court of Justice in England in the case of FiLgh v. 'fhe London, Brighton and South Coast Railway Co. («), in which Lord Esher, M. E.., said that the case then before the Court of Appeal was distinguishable from the case from the Colony of Victoria which had been decided by the Judicial Committee of the Privy Council and that he would not like to express an opinion upon the last mentioned case until he was forced to do so. What his opinion would have been, if he had been forced to give it, may be fairly inferred from the reception which the same decision met when it was cited before Mr. Justice Wright in the Queen's Bench Division in the case of Wilkinson v. Downton (b). In that case the court decided that the plaintiff was entitled to recover damages for an illness produced by a violent nervous shock induced by a false statement maliciously made to her by the defendant that (a) L.R. 1896 Q.B.D. vol. '2, p. 284. (6) L.R. 1897 Q.B.D. vol. 2, p. 57. 352 THE COMMONWEALTH AND THE JUDICIAL Appendix 3. her husband was dead, and Mr. Justice Wright definitely refused to follow the judgment of the Privy Council in the Victorian case, and said it was inconsistent with the decision of the Court of Appeal in Ireland. The judgment of the Supreme Court of the Colony of Victoria which was reversed by the Privy Council was therefore in accor- dance with the rule of law subsequently declared by the Court of Appeal in Ireland and by the Queen's Bench Division of the High Court of Justice in England, and the result of the reversal of the judgment of the Supreme Court of Victoria by the Judicial Committee of the Privy Council is that although the same rules of the common law were alleged to be applied in each of the several cases, two of the Crown's subjects in the colony of Victoria were denied redress for injuries received under circumstances in which subjects of the Crown in the United Kingdom are allowed to obtain, redress. The following illustration of divergence produced in judicial interpretation of statute law in different parts of the Empire by the appellate jurisdiction of the Privy Council is one which demonstrates that, so long as the exist- ■ ing appellate control of the judgments of Australian courts continues, the suitors in those courts will not have any guarantee that the language of the Acts of an Australian legislature will receive the same construction which the English courts will place upon similar language in an Act of the Imperial^Parliament. In November, 1877, an appeal was heard by the Judicial Committee of the Privy Council from an order of the Supreme Court of Queensland and the judgment of that court was reversed (a). The question to be decided was whether a lease of land granted by the Crown under the provisions of an Act of the Parliament of Queensland became immediately void or only voidable at the (a) Davenport v. TAe Queen, L.R., 3 Appl. Cases, p. 115. COMMITTEE OF THE PRIVY COUNCIL. 353 option of the Crown, upon failure of the lessee to occupy Appendix 3. and improve the land in accordance with the statutory requirement to that effect. The statutory provision in reference to the subject was as follows : — - " If any person selecting lands in an agricultural reserve shall fail to occupy and improve the same, as required by section 7 of this Act, then the right and interest of such selector to the land selected shall cease and determine ./ i elections. 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. 58. Until the Parliament otherwise provides, each senator Allowance to ^ ' members. and each member of the House of Representatives shall receive an allowance of Four hundred pounds a year, to be reckoned from the day on which he takes his seat. 49. The powers, privileges, and immunities of the Senate Privileges &c. of and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. 50. Each House of the Parliament may make rules and Rules and •^ orders. orders with respect to — 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 proceed- ings either separately or jointly with the other House. Pakt V. — Powers of the Parliament. ^^^'' ^■ Powers of The , „ , . , , ,, . /~i J., t. Parliament. 51. The Parliament shall, subject to this Constitution, — J Legislative have power to make laws for the peace, order, and good powers of The ^ Parlian;ent. government of the Commonwealth with respect to : — I. Trade and commerce with other countries, and among the States : 404 COMMONWEALTH OP AUSTRALIA II. Taxation ; but so as not to discriminate be- tween States or parts of States : III. Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth : IV. Borrowing money on the public credit of the Commonwealth : V. Postal, telegraphic, telephonic, and other like services : VI. The naval and military defence of the Common- wealth and of the several States, and the con- trol of the forces to execute and maintain the laws of the Commonwealth : VII. Light-houses, light-ships, beacons and buoys : VIII. Astronomical and meteorological observations : IX. Quarantine X. Fisheries in Aust- / W"^^® °^ 3yond terri- torial limitein waters b^ XI. Census a: XII. CurrertfBr ' •• J#S^1 tender : XIII. Bankinaa®, ' , -^ State banking ; also State bai^^fcan, , ,^ing beyond the limits of the Statl^B -^lil' ^^ incorporation of banks, and tl^BpProf paper money : XIV. Insurance, other than State insurance ; also State insurance extending beyond the limits of the State concerned : XV. Weights and measures : XVI. Bills of exchange and promissory notes : XVII. Bankruptcy and insolvency : CONSTITUTION ACT. 405 XVIII. Copyrights, patents of inventions and designs, and trade marks : XIX, Naturalization and aliens : XX. Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth : XXI. Marriage : XXII. Divorce and matrimonial causes ; and in relation thereto, parental rights, and the custody and guardianship of infants : XXIII. Invalid and old-age pensions : XXIV. The service and execution throughout the Com- monwealth of the civil and criminal process and the judgments of the courts of the States : XXV. The recognition throughout the Commonwealth of the laws, the public acts and records, and the judicial proceedings of the States : XXVI. The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws : XXVII. Immigration and emigration : XXVIII. The influx of criminals : XXIX. External affairs : XXX. The relations of the Commonwealth with the islands of the Pacific : XXXI. The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws : 406 COMMONWEALTH OF AUSTRALIA XXXII. The control of railways with respect to trans- port for the naval and military purposes of the Commonwealth : 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 : XXXV. Conciliation and arbitration for the prevention and settlement of industrial disputes extend- ing beyond the limits of any one State : XXXVI. Matters in respect of which this Constitution makes provision until the Parliament other- wise provides : XXXVII. Matters referred to the Parliament of the Com- monwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parlia- ments the matter is referred, or which after- wards adopt the law : XXXVIII. The exercise within the Commonwealth, at the request or with the concurrence of the Parlia- ments 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. CONSTITUTION ACT. 407 52. The Parliament shall, subject to this Constitution, Exclusive powers have exclusive power to make laws for the peace, order, and ment good government of the Commonwealth with respect to I. The seat of Government of the Commonwealth, and all places acquired by the Commonwealth for public purposes : II. Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth : III. Other matters declared by this Constitution to be within the exclusive power of the Parlia- ment. 53. Proposed laws appropriating revenue or moneys, or Powers of the imposing taxation, shall not originate in the Senate. But ff P^i^ygn a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its con- taining provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxa- tion, 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 Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amend- ment of any items or provisions therein. And the House of Representatives may if it thinks fit make any of such omissions or amendments, with or without modifications. 408 Appropriation Bills. Recommenda- tion of money votes. COMMONWEALTH OF AUSTRALIA Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws. 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. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only ; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only. 56. A vote, resolution, or proposed law for the appro- priation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated. nisngreement 57. If the House of Representatives passes any proposed Houses. igjyf^ and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amend- ments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Represen- tatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Represen- tatives by effluxion of time. CONSTITUTION ACT. 409 If after such dissolution the House of Representatives again passes the proposed law with or without any amend- ments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Represen- tatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made thertin by one House and not agreed to by the other, and any such amend- ments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor- General for the Queen's assent. 58. When a proposed law passed by both Houses of the Eoyai assent to Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The Governor-General may return to the House in which Reoommenda- ■^ tions by •it originated any proposed law so presented to him, and g"™™™- may transmit therewith any amendments which he may recommend, and the Houses may deal with the recom- mendation. 59. The Queen may disallow any law within one year Disallowance by - , T. n the Queen. from the Governor-Generals assent, and such disallowance 410 COMMONWEALTH OF AUSTRALIA on being made known by the Governor-General, by speech or message to each of the Houses of the Parliament, or bj Proclamation, shall annul the law from the day when the disallowance is so made known. Signification of 60. A proposed law reserved for the Queen's pleasure Queen s pleasure ^ -^ ■*■ on Bills shall not have any force unless and until within two years reserved. •J ^ from the day on which it was presented to the Governor- General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent. Chaptkr II. The Govern*- CHAPTER II. THE EXECUTIVE GOYERNMENT. Executive power. Federal Executive Council. Provisions referring to Governor- General. Ministers of State. 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the executior and maintenance of this Constitution, and of the laws of the Commonwealth. 62. There shall be a Federal Executive Council to advise the Governor-General in the Government of the Common wealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Execu tive Councillors, and shall hold office during his pleasure. 63. The provisions of this Constitution referring to th< Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of th( Federal Executive Council. 6^. The Governor-General may appoint officers ti administer such departments of State of the Commonwealtl as the Governor-General in Council may establish. CONSTITUTION ACT. 411 Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. After the first general election no Minister of State shall Ministers to sit in Parliament. hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. 65. Until the Parliament otherwise provides, the Ministers ^- umber of of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs. 66. There shall be payable to the Queen, out of the Salaries of Ministers. Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an. annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year. 67. Until the Parliament otherwise provides, the ap- Appointment of 1 (» n 1 iv p ,7 -n <• ^^^'^ servants. pointment and removal or all other omcers or the Jixecutive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority. 68. The command in chief of the naval and military Command of naval and forces of the Commonwealth is vested in the Governor- military forces. General as the Queen's representative. 69. On a date or dates to be proclaimed by the Governor- Transfer of J. ^ certam depart- General after the establishment of the Commonwealth the ments. following departments of the public service in each State shall become transferred to the Commonwealth : — Posts, telegraphs, and telephones ; Naval and military defence : Light-houses, light-ships, beacons, and buoys : Quarantine. 412 COMMONWEALTH OF AUSTRALIA But the departments of customs and of excise in eacl State shall become transferred to the Commonwealth on itf establishment. Certain powers 70. In respect of matters which, under this Constitution, vest in pass to the Executive Government of the Commonwealth, Governor- General. all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, oi in the Governor of a Colony with the advice of his Execu- tive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as tha case requires. ciiAPiKRiii. CHAPTER III. The Judicaturk. THE JUDICATURE. Judicial power 71. The iudicial power of the Commonwealth shall be and Courts. vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist oi a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. Judge's appoint- 72. The Justices of the High Court and of the other ment, tenure, *^ '^"^ .. courts created by the Parliament — remuneration. ■/ I. Shall be appointed by the Governor-General in Council : II. Shall not be removed except by the Governor- General in Council, on an address from both Houses of The Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity ; CONSTITUTION ACT. 413 III. Shall receive such remuneration as the Parlia- ment may fix; but the remuneration shall not be diminished during their continuance in office. 73. The High Court shall have jurisdiction, with such Appellate jmis- diction of Higrh exceptions and subject to such regulations as the Parliament Court. prescribes, to hear and determine appeals from all judg- ments, decrees, orders, and sentences — I. Of any Justice or Justices exercising the original jurisdiction of the High Court : II. Of any other federal court, or court exercising federal jurisdiction ; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council : III. Of the Inter-State Commission, but as to ques- tions of law only : and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parlia- ment shall prevent the High Court from hearing and deter- mining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Common- wealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court. 7i. No appeal shall be permitted to the Queen in Council Appeal to ■^■^ Queen in from a decision of the High Court upon any question, how- Council, soever arising, as to the limits inter se of the Constitutional 414 COMMONWEALTH OF AUSTRALIA powers of the Commonwealth and those of any State oi States, or as to the limits inter se of the Constitutiona powers of any two or more States, unless the High Coun shall certify that the question is one which ought to b( determined by Her Majesty in Council. The High Court may so certify if satisfied that for anj special reason the certificate should be granted, and there upon an appeal shall lie to Her Majesty in Council on the question wfthout further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased tc exercise by virtue of Her Royal pi'erogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved bj the Governor-General for Her Majesty's pleasure. Original juris- 75. In all matters — diction of High I. Arising under any treaty : II. Affecting consuls or other representatives oi other countries : III. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party : IV. Between States, or between residents of differ- ent States, or between a State and a resideni of another State : v. In which a writ of mandamus or prohibition oi an injunction is sought against an oificer ol the Commonwealth : the High Court shall have original jurisdiction. Additional 76. The Parliament may make laws conferring original jurisdiction. jurisdiction on the High Court in any matter — CONSTITUTION ACT. 4 15 (i.) Arising under this Constitution, or involving its interpretation : (11.) Arising under any laws made by the Parlia- ment : (ill.) Of Admiralty and maritime jurisdiction : (iv.) Relating to the same subject-matter claimed under the laws of different States. 77. With respect to any of the matters mentioned in the Power to define . . jurisdiction. last two sections the Parliament may make laws — (I ) Defining the jurisdiction of any federal court other than the High Court : (11.) Defining the extent to which the jurisdic- tion of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States : (ill.) Investing any court of a State with federal jurisdiction. 78. The Parliament may make laws conferring rights to Proceedings against Com- proceed asrainst the Commonwealth or a State in respect of monweaith or ■^ ° ^ state. matters within the limits of the judicial power. 79. The federal jurisdiction of any court may be exercised Number of judges. by such number of judges as the Parliament prescribes. 80. The trial on indictment of any offence against any Trial by jury, law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was com- mitted, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. CHAPTER IV. c„,,,,,, j^. FINAKCE AND TRADE. ^'"^.f'"' 81. All revenues or moneys raised or received by the Re^^^ue^Fund. Executive Government of the Commonwealth shall form one 416 COMMONWEALTH OF AUSTRALIA. Consolidated Revenue Fund, to be appropriated for the purposes of the' Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. Expenditure 82. The costs, charges, and expenses incident to the thereon. collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon ; and the revenue of the Common vrealth shall in the first instance be applied to the payment of the expenditure of the Common- wealth. Money to be 83. No money shall be drawn from the Treasury of the appropriated by ^ ^™- Commonwealth except under appropriation made by law. But until the expiration of one month after the first meeting of The Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament. offloera.'^ °^ 84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be CONSTITUTION ACT. 417 paid to him by the Commonwealth ; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculatif>n his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Common, wealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Com- monwealth. 85. When any department of the public service of a State Ti-ansfer of -' ^ A property of is transferred to the Commonwealth — '^'**^- I All property of the State, of any kind, used exclusively in connection with the department, shall become vested in the Commonwealth ; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor- General in Council may declare to be necessary. II. The Commonwealth may acquire any property of the State, of any kind, used, but not exclusively used, in connection with the department ; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth. III. The Commonwealth shall compensate the State for the value of any property passing to the Common- wealth under this section ; if no agreement can 27 418 COMMONWEALTH OF AUSTRALIA be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament. IV. The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred. 86. On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth. 87. During a period of ten years after the establishment of the Commonwealth and thereafter ilntil the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one- fourth shall be applied annually by the Commonwealth towards its expenditure. The balance shall, in accordance with this Constitution be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth. Uniform duties 88. Uniform duties of customs shall be imposed within of customs. two years after the establishment of the Commonwealth. Payment to 89. Until the imposition of uniform duties of customs — states before I. The Commonwealth shall credit to each State the revenues collected therein by the Commonwealth. II. The Commonwealth shall debit to each State — (a) the expenditure therein of the Common- wealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth ; (6) the proportion of the State, according to liniforra duties. CONSTITUTION ACT. 41 9 the number of its people, in the other expenditure of the Commonwealth. III. The Commonwealth shall pay to each State month by month the balance (if any) in favour of the State. 90. On the imposition of uniform duties of customs the Exclusive power power of the Parliament to impose duties of customs and of exdsel'inT^' excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect ; but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, One thousand eight hundred and ninety-eight, and not otherwise. 91. Nothing in this Constitution prohibits a State from Exceptions as to bounties. granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods. 92. On the imposition of uniform duties of customs, trade, Trade within tiie Commonwealtii commerce, and intercourse among the States, whether by '° ^^ ^'^^■ means of internal carriage or ocean navigation, shall be absolutely free. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State, within two years after the imposition of such duties, be liable to any duty chargeable on the 420 COMMONWEALTH OF AUSTRALIA Payment to States for five years after uniform Tariffs. Distribution of surplus. Customs duties of Western Australia. importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation. 93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parlia- ment otherwise provides : — I. The duties of customs chargeable on goods im- ported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State : II. Subject to the last sub-section, the Common- wealth shall credit revenue, debit expenditure, and pay balances to the several States as pre- scribed for the period preceding the imposi- tion of uniform duties of customs. 94. After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth. 95. Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not origin- ally imported from beyond the limits of the Commonwealth ; and such duties shall be collected by the Commonwealth. But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, CONSTITUTION ACT. 421 four-fifths, three-fifths, two-fifths, and one-fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth. 96. During a period of ten years after the establishment Financial & ^ -^ assistance to of the Commonwealth and thereafter until the Parliament states. otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. 97. Until the Parliament otherwise provides, the laws in Audit. force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an oificer of the Commonwealth, were mentioned when- ever the Colony, or the Government or an officer of the Colony, is mentioned. 98. The power of the Parliament to make laws ^ith Trade and com- respect to trade and commerce extends to navigation and g^J^f^^?° ™* shipping, and to railways the property of any State. 99. The Commonwealth shall not, by any law or regula- commonwealth tion of trade, commerce, or revenue, give preference to one preference. State or any part thereof over another State or any part thereof. 422 COMMONWEALTH OF AUSTRALIA Nor abridge right to use water. Inter-State Commission. Parliament may forbid preferences by State. Commissioners appointment, tenure, and remuneration. 100. The Commonwealth shall not, by any law or regula- tion of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. 101. There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parlia- ment deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Consti- tution relating to trade and commerce, and of all laws made thereunder. 102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if sucl\ preference or discrimination is undue and unreasonable, or unjust to any State ; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission. 103. The members of the Inter-State Commission — I. Shall be appointed by the Governor-General in Council : II. Shall hold office for seven years, but may be removed within that time by the Governor- General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity : III. Shall receive such remuneration as the Parlia- ment may fix ; but such remuneration shall not be diminished during their continuance in office. CONSTITUTION ACT. 423 105. Nothing in this Constitution shall render unlawful Saving of certain any rate for the carriage of goods upon a railway, the '^'''^'' property of a State,' if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States. 105. The Parliament may take over from the States their Taking over public debts as existing at the establishment of the Common- S^states^ '^ wealth, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof ; and the States shall in- demnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. CHAPTER y. THE STATES. Chapter V. Tub States. 106. The Constitution of each State of the Common- Saving of Constitutions. wealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 107. Every power of the Parliament of a Colony which Saving of pov^er - ^ •'of state Parlia- has become or becomes a State, shall, unless it is by this ments. Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Common- 424 COMMONWEALTH OF AUSTRALIA wealth, or as at the admission or establishment of the State, as the case may be. Saving; of state 108. Everv law in force in a Colony which has become or laws. . , . , becomes a State, and relating to any matter within the powers of the Parliament of ,the Commonwealth, shall, sub- ject to this Constitution, continue in force in the State ; and, until provision is made in that behalf by the Parlia- ment of the Commonwealth, 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. Inconsistency of 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Provisions 110. The provisions of this Constitution relating to the referring to Governor. Govemor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State. states may HI. The Parliament of a State may surrender any part surrender "^ *^ ^ territory. pf ^jig 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 levy 112. After uniform duties of customs have been imposed, charges for inspection laws, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary fo)' executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth ; and any such inspection laws may be annulled by the Parliament of the Commonwealth. Intoxicating 113. All fermented, distilled, or other intoxicating liquids liquids. _ _ _ _ _ o ± passing into any State or remaining therein for use, con- sumption, sale, or storage shall be subject to the laws of the State as if such liquids had been produced in the State. CONSTITUTION ACT. 425 114. A State shall not, without the consent of the Parlia- states may not ' raise forces. ment of the Commonwealth, raise or maintain any naval or Taxation of property of mintary force, or impose any tax on property of any kind Commonwealth or State. belonging to the Commonwealth, nor shall the Common- wealth impose any tax on property of any kind belonging to a State. 115. A State shall not coin money, nor make anything states not to but gold and silver coin a legal tender in payment of debts. 116. The Commonwealth shall not make any law for Commonwealth not to legislate establishing any religion, or for imposing any religious in respect of observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualifi- cation for any office or public trust under the Commonwealth. 117. A subject of the Queen, resident in any State, shall Rights of not be subject in any other State to any disability or dis- states. crimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. 118. Full faith and credit shall be given, throughout the Recognition of laws, &c., of Commonwealth, to the laws, the public acts and records, states. and the judicial proceedings of every State. 119. The Commonwealth shall protect every State against ^™t^'^*'°" °' invasion and, on the appHcation of the Executive Govern- j^'JJf^^^™.'""^ ment of the State, against domestic violence. 120. Every State shall make provision for the detention ^^1^^/^°' ^j^^j in its prisons of persons accused or convicted of offences J?'^^°*o^'^eaith. against the laws of the Commonwealth, and for the punish- ment of persons convicted of such offences, and the Parlia- ment of the Commonwealth may make laws to give effect to this provision. CHAPTER VI. Chapter VI. New States. NEW STATES. 121. The Parliament may admit to the Commonwealth ^^"^^^^^^^^^ or establish new States, and may upon such admission or estahUshed. 426 COMMONWEALTH OF AUSTRALIA Government of territories. Alteration of limits of States. Formation of new States. establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. 122. The Parliament may make laws for the government 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 Common- wealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territoi-y in either House of the Parliament to the extent and on the terms which it thinks fit. 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 question, 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 respect- ing the efiect and operation of any increase or diminution or alteration of territory in relation to any State affected. 124. A new State may be formed by separation of terri- tory from a State, but only with the consent of the Parlia- ment 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 of the Parliaments of the States affected. CUAPTER VII. MiSCELLANKons. Seat of Government. CHAPTER VII. MISCELLANEOUS. 125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within terri- tory which shall have been granted to or acquired by the Commonwealth, 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 one hundred miles from Sydney. CONSTITUTION ACT. 427 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 Common- wealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government. 126. The Queen may authorize the Governor-General to Power to Her ^ Majesty to appoint any person, or any persons jointly or severally, to authorize be his deputy or deputies within any part of the Common- '^^^H^l *° wealth, and in that capacity to exercise during the pleasure deputies. of the Governor-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 direc- tions given by the Queen ; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function. 127. In reckoning the numbers of the people of the Com- AboriRines not " to be counted in monwealth, or of a State or other part of the Common- reckoning ^ population. wealth, aboriginal natives shall not be counted. CHAPTER VIII. Of'-"™'' '^"i- Alteration of ALTERATION OF THE CONSTITUTION. constitution. 128. This Constitution shall not be altered except in the ^'^"/^^"nstitu-'"^ following manner : — ^°"' The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parlia- ment, and noc 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 vote 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 428 COMMONWEALTH OF AUSTRALIA pass it or passes it with any amendment to which the first- mentioned 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 amendmeut which has been made or agreed to by the other House, and such other House rejects or fails to pass ifc 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 amendment subsequently agreed to by both Houses, to the electors in each State qualified to vote for the election of the House of Representatives. 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 through- out the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult sufirage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall 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 minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto shall become law unless the majority of the electors voting in that State approve the proposed law. CONSTirUTION ACT. 429 SCHEDULE. OATH. I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. So HELP ME God ! AFFIRM A TION. I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (Note. — 2'Ae name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.) [430] Letters Patent relating to the Office of Governor- General of the Commonwealth. Commonwealth of Australia. 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. Letters Patent VICTORIA, by the Grace of God of the United Kingdom of Ootober 1900. Great Britain and Ireland Queen, Defender of the Faith, Empress of India : To all to whom these Presents shall come. Greeting : Preamble. "TT THERE AS, by an Act of Parliament passed on the Art ef fee?""''' ' ^ Ninth day of July, 1900. in the Sixty-fourth year ProciamaUon of '^^ ^^''^ Reign, intituled "An Act to constitute the Common- 1900.' ^"^ ^" " wealth of Australia," 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 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 LETTERS PATENT. 43 1 proclamation, appoint a Governor-General for the Common- wealth :" 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 Proclamation that, on and after the First day of January One thousand nine hundred and one, the people of New South Wales, Victoria, South Aus- tralia, Queensland, andTasmania, 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 authori- ties were declared to be vested in the Governor-General : And whereas We are desirous of making effectual and per- manent provision for the office of Governor-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 office of Governor- thought fit to constitute, order, and declare, and do by these General and Commander-in- presents constitute, order, and declare, that there shall be chief con- ^ stituted. a Governor-General and Commander-in-Chief (hereinafter called the Governor-General) in and over Our Commonwealth of Australia (hereinafter called Our said Commonwealth), and that the person who shall fill the said Office of Governor- General shall be from time to time appointed by Commission under Our Sign Manual and Signet. And We do hereby Governor- G^n 61' til's authorise and command Our said Governor-General to do power and authorities. 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 granted or appointed him by virtue of " The Commonwealth of Aus- tralia Constitution Act, 1900," and of these present Letters Patent and of such 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 432 LETTERS PATENT RELATING TO OFFICE Secretaries of State, and to such laws as shall hereafter be in force in Our said Commonwealth. Great seal. H. There shall be a Great Seal of and for Our said Com- monwealth which 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 pro- vided, the Private Seal of Our said Governor-General may be used as the Great Seal of the Commonwealth of Australia. iSfglsf jTuces, III- The Governor-General may constitute and appoint, in Our name and on Our behalf, all such Judges, Commis- sioners, Justices of the Peace, and other necessary Officers and Ministers of Our said Commonwealth, as may be lawfully constituted or appointed by Us. Suspension or IV. The Governor-General, so far as We Ourselves law- removal from office. fully may, upon sufficient cause to him appearing, may remove from his office, or suspend from the exercise of the same, any person exercising any office of Our said Common- wealth, under or by virtue of any Commission or "Warrant granted, or which may be granted, by Us in Our name or under Our authority. Summoning, y The Governor General may on Our behalf exercise all proroguing, or -^ Commonweafth po'^^^rs under the "Commonwealth of Australia Constitution Parliament. j^^^^ 1900," or otherwise in respect of the summoning, pro- roguing, or dissolving the Parliament of Our said Common- wealth. 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, appoint and in that capacity to exercise, during the pleasure of the Deputies. jr j or Governor-General, such powers and functions of the said Governor-General as he thinks fit to assign' to such Deputy or Deputies, subject to any limitations expressed or OF GOVBKNUR-GENERAL OF THE COMMONWEALTH. 433, 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 necessary or expedient to assign to him or them : Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise by the Governor-General himself of any power or function. VII. And We do hereby declare Our pleasure to be that, Sucoessiqn to ■' ^ the Govern- in the event of the death, incapacity, removal, or absence of °>^°'- Our said Governor-General out of Our said Commonwealth, all and every the powers and authorities 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 authorities shall vest in ^'°^^°^ teh'" 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 accompany- ing these Our Letters Patent. VIII. And we do hereby require and command all Our officers and others to obey Officers and Ministers, civil and military, and all other the and assistthe ■' Governor- inhabitants of Our said Commonwealth, to be obedient, General. 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. 434 LETTERS PATENT. Power reserved IX. And We do hereby reserve to Ourselves, Our heirs to Her Majesty to revoke, alter, and successors, full power and authority from time to time or amend the present Letters to revoke, alter, or amend these Our Letters Patent as to us Patent. ' ' or them shall seem meet. Publication of X. And We do further direct and enioin that these Our Letters Patent. '' 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 Westminister, the twenty-ninth day of October, in the Sixty-fourth Year of Our Reign. By Warrant under the Queen's Sign Manual. MUIR MACKEICZIE. Letters Patent constituting the office of Goveenob-General and Commander-inChief of the Commonwealth of Australia. [435] Instructions to the Governor-General. Commonwealth of Austealia. Instructions passed under the Royal Sign Mannal and Signet to the Governor-General and Commander-in- Chief of the Commonwealth of Australia. Victoria R. I. Instructions to Our Governor-General and Commander-in- ^ated wth October, 1900. Chief in and over our Commonwealth of Australia, or in his absence, to our Lieutenant-Governor or the Officer for the time being administering the Govern- ment of Our said Commonwealth. Given at our Court at Saint James's, this Twenty- ninth day of October, 1900, in the Sixty -fourth year of Our Reign. WHEErEAS by certain Letters Patent bearing even Preamble. date herewith; We have constituted, ordered, and declared that there shall be a Governor-General and Com- ^^^^^^ ^^^^^^^^ mander-in-Chief (therein and hereinafter called the Governor- ^^lXal°the General), in and over Our Commonwealth of Australia °^,°|°*e*J°j;"'" (therein and hereinafter called Our said Commonwealth). And We have thereby authorised and commanded Our said Governor-General to do and execute in due manner all 436 INSTRUCTIONS TO THE GOVERNOR-GENERAL. Publication of first Governor- General's Com- mission. things that shall belong to his said command, and to the trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of the said Letters Patent and of such 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. Now, therefore. We do, by these Our Instructions under Our Sign Manual and Signet, declare Our pleasure to be as follows : — I. Our first appointed Governor-General shall, with all due solemnity, cause Our Commission, under Our Sign Manual and Signet, appointing Our said Governor-General to be read and published in the presence of Our Governors, or in their absence of Our Lieutenant-Go vei-n or s 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. Oaths to be taken by first Governor- General, &c. Imperial Act, 31 & 32 Vict. c. 72. II. Our said Governor-General of Our said Commonwealth shall take the Oath of Allegiance 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 ofiice 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 Qur Colony of New South Wales or, in his absence, Our Lieu- tenant-Governor or other officer administering the Govern- ment of Our said Colony, shall and he is hereby required to tender and administer unto him. INSTRUCTIONS . TO THE GOVP^RNOR-GENBRAL. 437 III. Every Governor-General, and every other officer Publication of appointed to administer the Government of Our said Com- General's , , „ „ . 1 rt Commission monwealth atter Our said first appointed Governor-General, "■«'«'• the first , .. , , appointment. shall, With all due solemnity, cause Our Commission, 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. IV. Every Governor-General, and every other officer oaths to be appointed to administer the Government of Our said Com- G