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commerce

98. The power of the Parliament to make laws with Trade and respect to trade and commerce extends to navigation and includes shipping, and to railways the property of any State.1

navigation and State

Common

99. The Commonwealth shall not, by any law or regula- railways. tion of trade, commerce, or revenue, give preference to one wealth not State or any part thereof over another State or any part to give prethereof.

ference.

abridge

100. The Commonwealth shall not, by any law or regu- Nor lation of trade or commerce, abridge the right of a State or right to of the residents therein to the reasonable use of the waters use water. of rivers for conservation or irrigation.2

State Com

101. There shall be an Inter-State Commission,3 with Intersuch powers of adjudication and administration as the mission. Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

ment may

102. The Parliament may by any law with respect to Parliatrade or commerce forbid, as to railways, any preference or forbid prediscrimination by any State, or by any authority constituted ferences under a State, if such preference or discrimination is undue

1 The effect of this section and of Sec. 51 (i) is to endow the Parliament, not with a substantive power to deal with shipping and navigation at large, but only with power to deal with that subject so far as it is relevant to inter-state and foreign trade and commerce. Newcastle and Hunter River Steamship Co. (Lim.) v. Att.-Gen. for Commonwealth, C. L. R. xxix, p. 357.

Few subjects gave rise to more division of opinion and received more careful treatment at the convention debates than the question of the respective rights of the riparian owners, and of third parties interested in the waters of Australia (see especially Convention Debates, Melbourne, 1898, pp. 876-642). The 100th clause was substituted for a subsection in the 1897 Bill giving the federal legislature 'the control and regulation of the navigation of the river Murray, and the use of the waters thereof from where it first forms the boundary between Victoria and New South Wales to the sea'.

The first suggestion for an Inter-State Commission was made at the Adelaide Session in 1897; but its establishment was then made optional. With the reference to it of the subject of unfair or preferential railway rates its creation was made obligatory. Precedents existed in the InterState Commerce Commission of the United States set on foot in 1887, and the English Railway Commission of 1888. In spite of this express enactment an Inter-State Commission was not set on foot till 1918, under Act No. 88 of 1912. Commissioners were then appointed for seven years. Although, however, this period has expired, no fresh appointments have been made. Sec. 101 does not authorize the Parliament of the Commonwealth to constitute the Commission a Court. N. S. Wales v. The Commonwealth, C.L.R. xx, p. 55.

by State.

Commissioners' appoint

ment, tenure, and

remunera

tion.

Saving of certain rates.

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 Parliament
may fix; but such remuneration shall not be diminished
during their continuance in office.

104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the InterState 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

The Supreme Court of the United States has held that subject to the two leading propositions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate so as to give undue preference or disadvantage to persons or traffic similarly circumstanced', these words leave 'common carriers as they were at the common law, free to make special rates. . . and generally to manage their important interests upon the same principles, which are regarded as sound, and are generally adopted in other trades and pursuits. The carriers are better qualified to adjust such matters than any Court or Board of public administration; and within the limitations suggested it is safe and wise to leave to their traffic managers the adjusting of dissimilar circumstances and conditions to their business'. Quoted in Memorandum on South African Federation, Parl. Papers [Cd. 3564] 1907.

1

over pub

public debts as existing at the establishment of the Taking Commonwealth, or a proportion thereof according to lic debts the respective numbers of their people as shown by the of States. latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify 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 V.
THE STATES.2

CHAP. V.
The

States.

106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at Saving of Constituthe establishment of the Commonwealth, or as at the ad- tions. mission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.3

1 The words 'as existing at the establishment of the Commonwealth' are omitted by the Constitution Alteration (State Debts) Act, 1909.

"The status of the States is carefully considered in Harrison Moore's Commonwealth of Australia, 2nd ed., 1910, pp. 345-56. The conclusion reached is that there must be express or implied enactment in the Commonwealth Act for any powers formerly enjoyed by the State Governments, as well as Parliaments, to be taken away. On the position of Commonwealth and State officials with reference to the States and the Commonwealth, note the principle of the immunity of instrumentalities, which forbids the interference, direct or indirect, with the free exercise of powers given by the Constitution. See Harrison Moore, op. cit., pp. 421-37, and cases there cited. (It was on the subject of the immunity of federal officials from taxation that the High Court of the Commonwealth and the Privy Council gave directly contrary decisions.)

In the draft Bill of 1891 it was provided that all communications with the Crown by the States should be made through the GovernorGeneral; but such a clause was negatived at the Federal Convention at Adelaide; and in matters not expressly transferred to the Commonwealth Australia still speaks with six voices instead of one. It was not till 1910 that a High Commissioner for the Commonwealth entered upon his duties in Great Britain. (See addendum to note on p. 299.)

Saving of
Power of

107. Every power of the Parliament of a Colony which State Par- has become or becomes a State, shall, unless it is by this liaments. Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Saving of
State laws.

Inconsistency of laws.

108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament 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.

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 Gover- Governor 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.1

nor.

States may surrender

111. The Parliament of a State may surrender any part territory. of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.1

States

112. After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods tion laws, passing into or out of the State, such charges as may be

may levy
charges
for inspec.

necessary for executing the inspection laws of the State;

By an Act of 1910 giving effect to an agreement with South Australia the Northern Territory was taken over by the Commonwealth from January 1, 1911. Another Act, No. 27 of 1910, provides for the administration of the land in question. The rule that the Crown is not bound by a statute except by express words or necessary implication does not apply to State Governors. The King v. Sutton, C. L. R. v, p. 790. See also Att.-Gen. for N. S. Wales v. Collector of Customs for N. S. Wales, C. L. R. v, p. 818.

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.

cating

113. All fermented, distilled, or other intoxicating liquids Intoxipassing into any State or remaining therein for use, con- liquids. sumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

may not

Taxation

114. A State shall not, without the consent of the States Parliament of the Commonwealth, raise or maintain any raise naval or military force, or impose any tax on property of forces. any kind belonging to the Commonwealth, nor shall the of proCommonwealth impose any tax on property of any kind Commonbelonging to a State.1

perty of

wealth or

State.

money.

wealth not

115. A State shall not coin money, nor make anything States not but gold and silver coin a legal tender in payment of debts.1 to coin 116. The Commonwealth shall not make any law for Commonestablishing any religion, or for imposing any religious to legislate observance, or for prohibiting the free exercise of any in respect of religion. religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.2

residents

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- in States. crimination which would not be equally applicable to him

if he were a subject of the Queen resident in such other State.3

tion of

118. Full faith and credit shall be given, throughout the RecogniCommonwealth to the laws, the public Acts and records, laws, &c. and the judicial proceedings of every State.

of States.

of States

119. The Commonwealth shall protect every State Protection against invasion and, on the application of the Executive from invaGovernment of the State, against domestic violence.

1 Cf. Article I, Section 10, of United States' Constitution. To levy a municipal rate upon Commonwealth property is to impose a tax within this section. Municipal Council of Sydney v. The Commonwealth, C. L.R. viii, p. 208. 2 This clause seems out of place in the chapter on the States. On this section see Harrison Moore, op. cit. pp. 831-4. P

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sion and violence.

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