the Commonwealth of Australia and the States of Australia. In the Constitution of the United States and that of the Commonwealth there are numerous distinctive features in common presenting a remarkable contrast in whole and in parts to the Constitution of Canada. In the Australian Federal system we find the field of legislative power divided between the Parliament of the Commonwealth and the Parliaments of the States by a method very different from that by which legislative power is distributed by the British North America Act, and very different relations are created between the Commonwealth and the States when compared with the relations created by British North America Act between the Dominion and the Provinces of Canada.

The legislative powers of the Federal Parliament are enumerated and determined by grants coupled with prohibitions express or implied to be found within the instrument. The Legislatures of the States are left in possession of an undefined residuum of the plenary legislative powers which they exercised before the establishment of the Commonwealth. The extent and limits of that residuum can only be determined by reference to the enumerated Federal powers and the prohibitions express or implied, to be found within the instrument. There is an exclusive Federal area of legislative authority in which the States may never legislate. There is a concurrent legislative area in which both the Federal and State Parliaments may pass laws subject to the rule that in case of inconsistency the law of the Commonwealth prevails.

(11) INAPPLICABILITY OF CANADIAN CASES.

Let us now turn to the Constitution of the Dominion of Canada and note the contrast. In Canada there is an elaborate express and exhaustive division of the whole field of legislative authority among the Dominion and the Provinces. There is an explicit grant of exclusive legislative power to the Parliament of the Dominion over a number of matters specifically mentioned in section 91, together with a general grant of exclusive legislative power to the Parliament of the Dominion over all other matters not included among those assigned exclusively to the Provincial Legislatures by section 92. There is an equally explicit grant of exclusive legislative power to the Provincial Legislatures over a number of matters specifically mentioned in section 92, including direct taxation.

The distribution of the legislative powers in the British North America Act is shown in the following diagram in which the powers of the Dominion and those of the Provinces are placed in separate compartments.

Residuary exclusive Dominion power, e.g. general taxation.

The distribution of the legislative powers in the Australian Constitution Act as given in the following diagram, shows the contrast between the Canadian and the Australian Constitutions :

CONSTITUTION OF THE AUSTRALIAN COMMONWEALTH.

Sections 51, 52, 90.

Exclusive specified Commonwealth powers,

E.g. Inter-state trade, customs and excise.

Section 107.

Exclusive unspecified reserved powers of the States,

E.g. Police powers and internal trade.

Concurrent powers of the Commonwealth and the States in which in all cases of inconsistency the Commonwealth law prevails.

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In the Canadian Constitution there is no clause stating that in case of conflict or inconsistency the Dominion law prevails over the Provincial law. There is no arbitrary rule determining the superiority of a Dominion law over a Provincial law. The rule of construction as laid down by the Privy Council is :-" If they find that on the due construction of the Act a leglsative power falls within section 92, it would be quite wrong of them to deny its existence because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion Parliament." Such was the ratio decidendi of the judgment in the Bank of Toronto v. Lambe. The appellant had contended that the Provincial Legislature of Quebec was not empowered by section 92 of the British North America Act to impose the tax on banks which the appellant had refused to pay; and the argument of the appellant was that

if the language of section 92 was interpreted so as to empower the Provincial Legislatures to impose the bank tax in question, it would be in conflict with the language of section 91, which conferred upon the Parliament of the Dominion exclusive legislative power in respect of all the matter therein specifically mentioned, and therefore the meaning of section 92 must be controlled and restricted by the language of section 91.

In order to determine whether a Provincial Legislature had the power to impose the tax on banks, the Privy Council had to decide two questions, viz.: (1) Did the tax come within the description of direct taxation which the Provincial Legislatures were expressly expowered to impose by sub-section 2 of section 92? (2) If the tax did come within the description of direct taxation assigned to the Provincial Legislatures, in accordance with the ordinary meaning of the language of the description, was there anything in section 91, or in any part of the British North America Act, which restricted the meaning of the language used in sub-section 2 of section 92, so that it should not include the tax in question? The Board decided that the tax on banks did come within the description of direct taxation assigned to the Provincial Legislatures, and that its meaning was not controlled or restricted by anything contained in section 91. The same method of inquiry has been observed by the Privy Council in other cases in which they have been required to decide whether a particular matter which has been included in any impugned legislation of a Provincial Legislature was within the exclusive legislative power of the Parliament of the Dominion or within the exclusive power of the Provincial Legislatures. Mr. Justice INGLIS CLARK, Commonwealth Law Review, vol. 1, p. 197.

Therefore, in Canada. the validity of any impugned legislation of a Provincial Legislature always depends upon the true meaning and scope of particular words used in section 92 of the Act, but the language of section 91 is examined for the purpose of ascertaining in accordance with the settled rules for the interpretation of Statutes, whether it can be properly regarded as qualifying or controlling the meaning of the particular words of section 92 which are to be construed.

In Australia where State and Federal legislation is impugned, the question of validity involves a series of inquiries relating to the legislative powers of the States and the Commonwealth inter se,

and it cannot in any case be determined like a question of the validity of impugned legislation in Canada. The express grant of power to the Federal Parliament coupled with express or implied prohibitions must be examined. The reserved legislative powers of the States are not specified and cannot be examined or identified one by one as those of the Provinces of Canada can be.

"The process of interpretation is entirely different in the Australian Constitution from that in the Canadian Constitution. The question of an alleged encroachment by the Parliament of the Commonwealth upon the field of legislative power reserved to the States," says Mr. Justice INGLIS CLARK must frequently involve the consideration of the extent to which the legislative powers of the States are necessarily curtailed by the Constitution, or made subject to the exercise of a superior legislative power vested in the Commonwealth. This inquiry involves in its turn а consideration of the effect of the impugned legislation upon the political autonomy of the States. The effect of a law of the Commonwealth upon the political autonomy of the States is not the primary test of its validity; but the effect of the law may reveal its essential character and thereby assist in the determination of the question, whether it is within any of the powers specifically granted to the Commonwealth. The legislative powers of the States ought not to be declared to be curtailed or limited by the Constitution to any larger extent than that to which the purposes for which the Commonwealth was established require them to be curtailed and limited. The absence of any power in the GovernorGeneral of the Commonwealth in Council to disallow any legislation of a State is in itself a clear indication that, in contrast with the Constitution of the Dominion of Canada, the purpose of the Constitution of the Commonwealth is to fully preserve the political autonomy of the States, in respect of all matters which are not placed by the Constitution within the legislative power of the Parliament of the Commonwealth": Commonwealth Law Review, vol. 1, p. 200.

"The explicit declaration of covering Clause V. of the Australian Constitution Act and of section 109 of the Constitution do not settle all problems of interpretation. They do not relieve the judiciary of the task of determining the boundary lines of the legislative powers of the Commonwealth and the States, in many cases of alleged encroachment, by a consideration of the purposes for

which the Constitution was established and the respective positions inter se which the Commonwealth and the States were intended to occupy under it. In other words, a clear recognition of the Federal character of the system established by the Constitution of the Commonwealth is indispensable to a true interpretation of its provisions" Commonwealth Law Review, vol. 1, p. 201.

(12) AMERICAN AND CANADIAN CONSTITUTIONS.

(NOTES by SIR ROBERT GARRAN).

The United States Constitution.

Canadian cases as to the distribution of power, when applicable at all to the Australian Constitution, must be applied with the greatest caution. American cases, on the other hand, are often applicable in their entirety; but here, too, there are differences which, though they concern details rather than principles, are so important that they must be carefully borne in mind.

The scheme of distribution of powers is as follows:

(1) Congress is given legislative power as to specified matters only (Article I., section 8)-including "all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in Congress or the Executive.

(2) The powers of the State Legislatures are residuary. They are not given exclusive power as to any specified subjectmatter; but they retain exclusive power wherever the power of Congress cannot reach (Tenth Amendment; cf. Australian Constitution, sections 107-109).

(3) Few of the powers of Congress are expressed to be exclusive; and except as to these few, the State Legislatures retain concurrent power, though State laws must always yield when inconsistent with valid Acts of Congress.

These principles are substantially identical with those of the Australian Constitution; but their application is modified by the following important differences :

(1) The enumerated subject-matters of Federal legislative power are much fewer, e.g., Congress has no power to make laws as to bounties, quarantine, fisheries, banking, insurance, bills of exchange and promissory notes, trade