'Restricted Powers']; The same limitation of being subject to Constitutional provisions applies also to all the following:-Rivers; Shops; Taxation for raising revenue for State purposes; Trade and Commerce within the State; Works-construction and promotion of public works and internal improvements.”

"RESTRICTED POWERS.-Some powers reserved to the States can only be exercised sub modo-subject to conditions and limitations specified by the Constitution :

"Bounties.-A State may, with the consent of both Houses of the Federal Parliament expressed by resolution, grant any aid or bounty on the production or export of goods [Sec. 91].

"Naval and Military Forces.-A State may, with the consent of the Federal Parliament, raise and maintain Naval and Military Forces [Sec. 114].

"Railways.-A State may construct, use, and control its railways, but subject to Federal control with respect to transport for naval and military purposes of the Commonwealth (Sec. 51-xxxii.], and subject to the rule that in the use and control of its railways the State may be forbidden to make any preferences or discriminations which, in the judgment of the Inter-State Commission, are undue and unreasonable, or unjust to any State [Sec. 102]. 'Rivers.—A State and its residents have the right to the reasonable use of the water of rivers within the State for conservation or irrigation [Secs. 98, 100].

"Taxation of Federal Property.-A State may, with the consent of the Federal Parliament, impose any tax on property of any kind belonging to the Commonwealth [Sec. 114].

"Taxation.-A State may impose taxation so long as it does not conflict with Federal taxation, and so long as it does not violate the rule of InterState freedom of trade and commerce. It is forbidden to impose duties of Customs and Excise after the imposition of uniform duties of Customs by the Federal Parliament [Secs. 90 and 92].

"New Legislative Powers.-By the Federal Constitution certain new legislative powers are conferred on the Parliament of each State, the exercise of which is necessary for the Constitution of the Federal Parliament. The Parliament of each State is permanently endowed with power to make laws for determining the times and places of elections of Senators for the State [Sec. 9]. Until the Federal Parliament otherwise provides: The Parliament of each State may make laws prescribing the method of choosing the Senators of that State." [And certain other new powers of the same nature which are dealt with in the Chapters on the Composition of the Upper and Lower Houses.]

In addition to this classification of legislative powers under the Australian Constitution, it should be noted that Sec. 109 of that Constitution makes definite provision for a conflict between laws passed by the Commonwealth and the State Parliaments. Thus :

"

Section 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."

Upon this section, Professor Moore ["Commonwealth of Australia," pp. 172-175] makes the following comment :

"This provision operates where the State law conflicts with some exercise of power by the Commonwealth Parliament, not where it is inconsistent with the power itself. It assumes that each Legislature is acting within its proper range of power, where the State law would be good and operative but for the exercise of paramount power by the Commonwealth Parliament, the case

which has been described in America as that in which the State law fails, not because it is unconstitutional, but because it is superseded by the paramount authority of the national legislature.' It applies whether the State law has been passed after the Commonwealth law or the Commonwealth law has been passed after the State law."

And, generally, it may be said that in considering the effect of this section, the principles laid down earlier in this chapter, in discussing the question of the distribution of legislative power under the Constitution of the United States, should again be kept in mind.

*Hare: "American Constitutional Law," p. 98.

CHAPTER IX.

THE EXECUTIVE.

The British North America Act [Sec. 9] makes the following Canada. provision for the exercise of the Executive power of the Dominion Government :-" The Executive Government and authority of and over Canada is hereby declared to continue and to be vested in the Queen." This Section makes no provision for the exercise of the executive power vested in the Queen except by Her Majesty herself. But as has already been pointed out in the chapter on "The Governor-General," the exercise of this power, vested in the Queen, is committed to the Governor-General by virtue of the Letters Patent issued to him on his appointment.

The Constitution of Australia is more explicit upon this point⚫ Australia, It provides [Sec. 61] 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 extends to the execution and maintenance of this Constitution and the laws of the Commonwealth."

To ascertain the exact meaning of the word "Commonwealth" in this Section it is necessary to refer to Section 6 of the Act constituting the Commonwealth of Australia, which covers and legalises the Constitution itself. That Section says that "the Commonwealth shall mean the Commonwealth of Australia as established under this Act."

Messrs. Quick and Garran [Annot. Const. Australian Comm., p. 368] define the Commonwealth as "a Quasi-National State [or Semi-National State] composed of a homogeneous and related people of ethnic unity, occupying a fixed territory of geographical unity, bound together by a common Constitution, under a dual system of provincial and central Government, each supreme within its own sphere and each subject to the common Constitution." Upon this definition they base [p. 701] the following analysis of the powers of the Commonwealth :

Executive
Council.

Canada.

Australia.

Responsible
Government.

This analysis is quoted here subject to what has been said in the chapter on Powers of the Central Government" in order to define clearly the exact extent of the executive power of the Commonwealth which is conferred upon the Governor-General, as representing the Queen, by Sec. 61 of the Australian Constitution.

As has already been stated in the chapter on "The GovernorGeneral," the Queen's representative both in Canada and Australia is assisted in the performance of certain of his executive duties by a Council. In Canada this Council is called the "Privy Council," and is constituted by Sec. II of the British North America Act :—

"There shall be a Council to aid and advise in the government of Canada, to be styled the Queen's Privy Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and members thereof may be from time to time removed by the Governor-General."

Sec. 62 of the Australian Constitution is almost identical in its terms:

"There shall be a Federal Executive Council to advise the Governor General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as the Executive Councillors, and shall hold office during his pleasure."

In both Canada and Australia the system of responsible government prevails. In Canada the British custom has been followed, and both the responsibility and power of the Ministers of the Crown is established, not by express enactment of the Constitution, but by recognisd constitutional practice. In the Constitution of Australia, on the other hand, a remarkable departure from the British custom is made. Sec. 64 provides that :

:

The Governor-General may appoint officers to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish.

"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 hold office for a longer period than three months unless he is, or becomes, a Senator or a member of the House of Representatives."

This Section crystallises into a definite enactment the traditional constitutional practice of Great Britain and her Colonies. Messrs. Quick and Garran* give an interesting resume of the Convention debates which led to the express mention in the Constitution of "the Queen's Ministers of State for the Commonwealth." Those reasons are fairly summed up in the following extract from a speech made by Mr. Deakin to the Sydney Convention of 1891 :

"Complete as is the skeleton of Constitutional Government which the Hon. Member, Sir S. Griffith, has given us in these clauses, I maintain that it is, after all, only a skeleton, and that the life which is implied by its being administered by rseponsible Ministers has yet to be imparted to it. We do not desire to introduce words which might seem to claim for Australia royal prerogatives, but we do wish to introduce words claiming all the prerogatives of the Crown directly relating to Australia. What we say is that these clauses as they stand do not with sufficient distinctness make that claim,and that

*Ann. Const. Aust. Comm., pp. 709-711.

we should seize every opportunity of placing points of this importance beyond all dispute, that we should embody in these clauses the claim of Ministers of the Commonwealth to exercise all the prerogatives of the Crown which may be necessary in the interests of the Commonwealth."

The following comment by Messrs. Quick and Garran puts the resultant position very concisely :

"The object of the words [Queen's Ministers of State for the Commonweath] is to secure a formal recognition of the authority of the Ministers of the Commonwealth individually and collectively. But they do more than that; they formally recognise, not indeed every phase or feature of what is currently known as 'Responsible Government,' but the existence of a body something like a Cabinet within the Executive Council-a Committee whose members are individually Ministers of Departments and, collectively, the Queen's Ministers of State for the Commonwealth.'"

It may, however, reasonably be doubted whether the insertion of definite words recognising responsible government in a written Constitution may not have the effect of limiting, whilst it defines, the very wide and undefined powers which constitutional practice has conferred upon Ministers in Great Britain and in Canada and other Colonies. Thus Messrs. Quick and Garran suggest that a strict interpretation of the words of Sec. 64 might precludə the appointment of a Federal Minister without portfolio as a member of the Federal Cabinet in Australia.*

*The Composition and Powers of the Swiss Federal Executive are described in Appendix D.