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sibility to foreign Powers for such legislation would rest, not on Australia, but on the Government of the United Kingdom, as representing the whole Empire; and in the absence of any definition or limitation of the privilege claimed by these provisions for the Commonwealth Parliament, Her Majesty's Government would fail in their duty if they left any room for doubt as to the paramount authority of Imperial legislation. || The next amendment dealt with in the Memorandum is the proposed omission from clause 5 of the words which prescribe that „The laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.“ The Delegates rely upon the fact that an even wider application in the case of British ships was given to the Laws of the Federal Council by section 20 of the Federal Council Act of 1885, and they urge that the Laws of the Commonwealth Parliament, a more representative and responsible body than the Federal Council, should not be denied the more limited application claimed in the clause. || The words of section 20 of the Federal Council's Act were very wide, perhaps unduly so, and if the powers thereby conferred had been freely exercised grave difficulties would certainly have arisen. || What is desired is the power to the Commonwealth to control the coasting trade: this power they will have under section 736 of „The Merchant Shipping Act, 1894", which is not confined in its operation to the coasting trade while in territorial waters. Moreover, the words „first port of clearance“ and „port of destinations in the clause in question are not free from ambiguity, and embarrassing questions might be raised as to the law applicable to a ship clearing from one Australian port for another after coming to Australia from a port in some other part of Her Majesty's dominions. Il The analogy of the Federal Council of Australasia is incomplete, inasmuch as it was contemplated that all British possessions in Australasia might be represented in the Federal Council, whereas the operation of this Bill is at present confined to five Australian Colonies. || It must not be forgotten that the Imperial Parliament was expressly invited by Mr. Barton when speaking in the Convention to deal as they thought proper with this provision of the Bill. || The Memorandum next deals with the amendment relating to appeals to the Privy Council.
Before proceeding to consider the reasons urged by the Delegates against the proposed amendment, it is desirable to set out the grounds upon which Her Majesty's Government object to the provisions of Article 74, to which the suggested amendment applies. The Article is as follows:
|| „No appeal shall be permitted to the Queen in Council 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. || „Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of her Royal prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting the matters in which such leave may be asked.“ || It is impossible to say what construction would be placed on this Article when it comes to be judicially interpreted. There may be large classes of cases just on the border-line with regard to which it cannot be predicted whether they do or do not involve the interpretation of the Constitution. || It may fairly be argued that any question as to the validity of the exercise of legislative powers by the Legislature of the Commonwealth is a matter involving the interpretation of the Constitution. Questions may arise whether legislation under any of the powers mentioned in paragraphs i, ix, x, xix, xx, xxvi, xxvii, xxviii, xxix, xxx, xxxvii, and xxxviii of Article 51 of the Constitution is or is not ultra vires, and any such legislation may involve matters affecting foreigners and foreign ships in Australia and in Australian waters and their Treaty rights. Yet as the clause stands there would be no right of appeal from the High Court to the Privy Council in such cases. The Constitution embodies a request to the Imperial Parliament to delegate to the Parliament of the Commonwealth part of the powers now exerciseable only by the Imperial Parliament or by the Crown. Paragraphs 29, 30, and 38 of Article 51, for instance, purport to transfer to the Commonwealth Parliament powers not included in the powers of an ordinary Colonial Parliament, and it can hardly be contended that the Imperial Parliament should preclude an appeal to an Imperial Court on any question as to the extent to which powers now exercised exclusively by itself or by the Crown have been delegated. || A grave objection to Article 74 is tlie absence of any definition of the class of cases in which „the public interests of some part of Her Majesty's dominions other than the Commonwealth or a State“. || Does this phrase include the interests of a large class of persons in Her Majesty's dominions say of investors in Australian securities, or of a body of shareholders in an industrial undertaking formed, say, in the United Kingdom, to carry on some great commercial enterprise in Australia - or is it confined to cases in which the interests affected are only those of the government of other parts of Her Majesty's dominions? || If the latter is the true meaning, the proviso would have little or no operation. If the former, no task
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