The Chief Justice (Sir SAMUEL GRIFFITH) said :

"Various points were raised and discussed before us, but in the view that we take of the matter, it is not necessary to consider more than one of them, namely, whether section 5 of the Victorian Police Offences Act when it was passed bound the Executive Government of Victoria. It is not disputed that, if it did not bind the Victorian Government, it does not now bird the Federal Government, to which the rights and obligations of that Government in respect of the Post ar d Telegraph Department have been transferred. It is a general rule that the Crown is not bound by a Statute unless it appears on the face of the Statute that it was intended that the Crown should be bound by it. This rule has commonly been based on the Royal prerogative. Perhaps, however, having regard to modern developments of constitutional law, a more satisfactory basis is to be found in the words of ALDERSON, B., delivering the judgment of the Court of Exchequer in Attorney-General v. Donaldson, 10 M. & W., 117, at p. 124. The Executive Government of the State is not bound by Statute unless that intention is apparent. The doctrine is well settled in this sense in the United States of America. With regard to the Statute now under consideration, so far from its text suggesting a clear intention to control the action of the Executive Government, a contrary intention is, prima facie, probable. At the time when the Act was passed, the Executive Government had the control of many great institutions-gaols, orphanages, asylums, police barracks, Government c'epartments of all sorts, and occasionally military encampments and it is, prima facie, unlikely that the Legislature should have intended to subject the Executive Government to the uncontrolled discretion of a local authority with regard to sanitary arrangements of such institutions. Such a construction would have rendered the Executive officers of the States themselves liable to prosecution whenever they procured any such act to be done without the licence of the local authority, or without giving security to its satisfaction. In our judgment, therefore, the provision in question did not affect the Victorian Government, and does not now affect the Federal Government or its agencies in the management of the Post and Telegraph Department": 1 C.L.R., 406.

more

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The Crown Represents Commonwealth and State as Separate Juristic

Persons.

In the case of the Municipal Council of Sydney v. The Commonwealth, (1904) 1 C.L.R., 208, which was an action to recover municipal rates, the Chief Justice of the High Court (Sir SAMUEL GRIFFITH) said :

"It is manifest from the whole scope of the Constitution that, just as the Commonwealth and State are regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown, representing those several bodies, is to be regarded not as one, but as several juristic persons, to use a phrase which well expresses

as

as

the idea. No better illustration can be given than is afforded by the lands now sought to be rated, which, having originally been ' property of the State,' i.e. lands of the Crown in New South Wales, have become vested in the Commonwealth, i.e., vested in the Crown in right of the Commonwealth. The change in constitutional ownership is accurately and unmistakably denoted by the language of section 85 in which it is expressed. The term the Crown used in the Sydney Corporation Act must be taken to mean the Crown in its capacity as representing the State of New South Wales. In the Act of 1879, passed before the establishment of the Commonwealth, it obviously had that meaning, and no wider one can be given to it in the re-enactment of 1902. The argument, therefore, sought to be founded upon the assent of the Crown, given through the Governor of New South Wales, to the taxation of Crown lands, fails, since land vested in the Commonwealth or in the Crown in right of the Commonwealth is not Crown land within the meaning of the Sydney Act. Nor, in my judgment, can the liability of the land, while Crown land of New South Wales, to municipal taxation be regarded as a liability running with the land, any more than if the land had afterwards been granted for a purpose which would exempt it from such liability": 1 C.L.R., 231.

In the construction of Commonwealth Statutes the rule that the Crown is not bound by a Statute except by express words or necessary implication applies only to those representatives of the Crown who have Executive authority in the place where the Statute applies, and as to matters to which that Executive authority extends. The Constitution binds the Crown as represented by the various States, and takes no account of the States and State Governments in relation to Commonwealth legislation on matters within the exclusive control of the Commonwealth Government. Therefore, in the construction of Commonwealth Statutes dealing with such matters, the rule applies to the Sovereign as head of that Government, but not to the Sovereign as head of the State Governments. In other words in the construction of a Commonwealth Statute the Crown, as representing the Commonwealth, is not bound unless it is expressly named, but the Crown as representing the States may be bound although it is not expressly mentioned, if the Commonwealth Parliament has constitutional authority to legislate in a matter affecting the States, in common with private individuals.

The Customs Act 1901, being a valid exercise by the Commonwealth of the exclusive power to impose, collect and control duties of customs and excise conferred by sections 52 (II.), 86, and 90 of the Constitution, applies to goods imported by the Government of a State as well as to those imported by private persons; and

therefore, goods imported by a State, whether dutiable or not, are by section 30 of the Act subject to the control of the customs, and the authority of the State Executive is no justification for their removal from that control contrary to the provisions of the Act. A quantity of wire netting, which had been purchased in England and imported into the Commonwealth by the Government of New South Wales was landed at the port of Sydney. Without any entry having been made or passed, and without the authority of the customs officers, the defendant, acting under the authority of the Executive Government of the State, removed the goods from the place where they were stored. In an action to recover a penalty it was held by the High Court that the defendant had committed a breach of sections 33 and 236 of the Customs Act. The King v. Sutton, (1908) 5 C.L.R., 789.

The Chief Justice (Sir SAMUEL GRIFFITH) said :

"The rule that the Crown is not bound by a Statute unless expressly mentioned, or unless it appears by necessary implication that it was intended to bind the Crown, is a rule of construction, the object of which, as of other rules of construction, is to give effect to the intention of the legislature. If it appears clearly that the intention was that the Crown should be bound, effect is given to this rule by so holding. This being the meaning of the rule, it follows that it does not apply to every person who in any part of the world represents the Crown, but only to those representatives of the Sovereign who have executive authority in the place where the law applies, and even there, only as to matters to which that executive authority extends. The Crown, as the head of the Commonwealth Government, is for many, if not all, purposes a separate juristic person from the Crown as head of a State Government. In matters under the exclusive control of the Commonwealth Government the doctrine applies to the Sovereign as head of that Government, but has no application to the Sovereign as head of the State Governments." The King v. Sutton, (1908) 5 C.L.R., 795, 796, and 797.

:

pp.

On the other hand if the Commonwealth Parliament has no constitutional authority to legislate in a matter affecting the States the States will not be bound, even if they are expressly mentioned in a Commonwealth Statute. Thus the Commonwealth Conciliation and Arbitration Act, section 2, purported to give the Arbitration Court power to make industrial awards affecting railways the property of a State, but the High Court held that law to be invalid as not within the competence of the Parliament: Federated Amalgamated Government Railway and Tramway Service Association v.

New South Wales Railway Traffic Employees' Association, (1906) 4 C.L.R., 489.

In the case of The Commonwealth v. The State of New South Wales, (1905-6) 3 C.L.R., 808, the High Court decided that the memorandum of transfer of land held under the Real Property Act (New South Wales) to the Commonwealth for Commonwealth purposes under section 3 of the Property for Public Purposes Acquisition Act 1901, is not liable to stamp duty, and therefore the Commonwealth is entitled to have such instrument marked exempt by the Commissioner for the purposes of registration under the Real Property Act. The Stamp Duties Act (New South Wales), was not intended to impose, and did not impose, any obligation on the Crown when it was passed, and therefore does not now impose any obligation upon the Commonwealth. Even if the Act, when passed did affect the Crown as representing the community of New South Wales, it could not, after the establishment of the Commonwealth be construed as affecting the Crown as representing the Commonwealth.

If the New South Wales Stamp Duties Act were made expressly applicable to Commonwealth titles, it would have been invalid as it is beyond the competence of a State law to interfere with Commonwealth instrumentalities.

Short title.

1. This Act may be cited as the Commonwealth of Australia Constitution Act.

66

This Act, to constitute the Commonwealth, consists of nine clauses, sometimes described as covering clauses" to distinguish them from the sections of corresponding numbers in the Constitution. To each clause is annexed a marginal note. The marginal notes do not form parts of the Act; they are provided merely as brief summaries. In these commentaries, the notes, printed, in the authorized edition of the Act, at the sides or against the clauses and sections, will be found placed at the head of or immediately over each clause or section.

Clause 1 gives the short title of the Act; clause 2 declares that it extends to the Queen's successors; clause 3 provides that the

Queen may issue a proclamation appointing a day when the people of the federating Colonies shall be united in a Federal Commonwealth; clause 4 specifies when the Commonwealth is to be deemed legally established; clause 5 provides for the legal operation of the Act and of the laws of the Commonwealth; clause 6 defines "Commonwealth," "States," and "Original State "; clause 7 repeals the Federal Council Act, 1885; clause 8 applies the "Colonial Boundaries Act, 1895," to the Commonwealth; clause 9 enacts the Constitution of the Commonwealth, so that the Constitution is unquestionably a part of the Act.

In the Commonwealth Bill as introduced into the Imperial Parliament, the Constitution was, at the suggestion of the Crown law officers, annexed as a Schedule to the Bill; but in committee the original form of the Bill was restored.

The nine clauses of the Act cannot be amended by the Parliament and the people of the Commonwealth, but only by the British Parliament. The amending power contained in the Constitution is applicable to the Constitution only which is annexed to clause 9.

Act to extend to the Queen's successors.

2. The provisions of this Act referring to the Queens shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

§ 5. "REFERRING TO THE QUEEN."

The Crown when Bound.

As to the provisions in a Commonwealth or State Act by which the Crown may be bound: see Note, § 3 "The Crown."

Proclamation of Commonwealth.

3. 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"