in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at

any time after the proclamation, appoint a GovernorGeneral for the Commonwealth.

§ 6. "VICTORIA; SOUTH AUSTRALIA."

Boundary Question.

The boundary between the Colony of South Australia and that portion of the original Colony of New South Wales which now forms the State of Victoria was fixed by 4 and 5 Will. IV., c. 95, and by Letters Patent thereunder of 19th February 1836, as the 141st meridian of East Longitude. In 1847, by the authority of the Governors of New South Wales and South Australia and with the knowledge and approval of the Secretary of State, a line was located and marked on the ground as being the 141st meridian, but was in fact, as was discovered in 1869, about two miles to the westward of that meridian. The line so marked was proclaimed by the respective Governors as the boundary and was the de facto boundary thenceforward. From 1869 onwards the Government of South Australia protested against the continuation of the error in the marking out of the boundary and sought to have it rectified, but without result. In 1910 an action was brought in the High Court, by the State of South Australia against the State of Victoria for a declaration that the strip of land between the 141st meridian and the line so marked out was part of the territory of South Australia.

It was held by the High Court that an authority was to be implied in the Governors of South Australia and New South Wales jointly, possibly without, and certainly with, the concurrence of the Crown signified through a Secretary of State, to permanently locate and mark on the ground that boundary as soon as circumstances called for exercise of that authority; and that, if the boundary having been so located and marked was afterwards found to have been marked and located in the wrong place, the error could not thereafter be corrected by any judicial authority. It was further held that South Australia had no right of which the High Court could take cognizance. The High Court: Per GRIFFITH, C.J., and Justices BARTON, O'CONNOR and ISAACS; HIGGINS, J., dissenting South Australia v. Victoria, (1911) 12 C.L.R., 668.

British Possessions.

§7. "SHALL BE UNITED."

The original Australian Colonies are transformed into States and united into a Federal Commonwealth, but they retain their respective individualities and entities as separate "British Possessions" within the meaning of several Imperial Statutes. By the Fugitive Offenders (Imperial) Act 1881, it is enacted that the jurisdiction under Part I. of that Act to hear a case, and commit a fugitive to prison, to await his return to the part of the Empire from which he fled shall be exercised in the British possession in which he is arrested, by any Judge, Justice of the Peace, or other officer having the like jurisdiction as one of the magistrates of the Metropolitan Police Court in Bow Street, or by such other Court, Judge, or Magistrate, as may be from time to time provided by an Act or Ordinance passed by the Legislature of that possession. By virtue of section 39, the expression "British possession," means in that Act, unless the context otherwise requires, any part of His Majesty's dominions, exclusive of the United Kingdom, the Channel Islands, and the Isle of Man; but all territories and places within His Majesty's dominions, which are under one Legislature, are to be deemed to be one British possession, and one part of His Majesty's dominions. The expression "Legislature," where there are local Legislatures as well as a central Legislature means the central Legislature only. In the case of Re Mc Kelvey v. Meagher, (1906) 27 A.L.T., p. 198; (1906) V.L.R., 304, which came before the Full Court of Victoria in 1906, it was contended that after Federation, Victoria became one of a group of States, constituting the Commonwealth of Australia, having a central Legislature within the meaning of the Act; that Victoria had, therefore, ceased to be a British possession within the meaning of the Imperial Act; and that Mr. Panton, a Victorian Police Magistrate, had no jurisdiction to hear the case, on the ground that he was a magistrate of Victoria only, and not a magistrate of the Commonwealth.

It was further argued that Sir JOHN MADDEN, by whom the warrant was backed, had no jurisdiction to endorse it, as he was only a Judge of the Supreme Court of Victoria and not of the Commonwealth; and the Commonwealth was the part of His Majesty's dominions, and the territory within which the fugitive was when arrested. It was contended that the only Judge of a superior Court who could endorse the warrant under section 3, would be a Judge

of a superior Court of the Commonwealth, and that the only magistrate who could act under section 5 would be a magistrate of the Commonwealth.

The Acting Chief Justice (HOLROYD, J.) said :

When the Fugitive Offenders Act was passed, nearly nineteen years before the Commonwealth Constitution Act, the Colony of Victoria was unquestionably one of the British possessions, and if it has ever lost that character, that can only be by virtue of the definition clause before referred to, and in such territories and places only within His Majesty's dominions as are under one central Legislature. It may be difficult to define what is intended by the words central legislature; but, as it appears to me, in declaring that British territories, which severally enjoyed a greater or less degree of local self-government, but had already, or should thereafter become subject in various matters to a higher legislative authority, should be deemed to form one part of His Majesty's dominions, the object of the Imperial Parliament must have been to enable the confederate body, if it pleased, to exercise those powers of arresting and returning fugitive offenders, which by the same Act, were being conferred upon the British dependencies composing, or which might thereafter compose, the confederation. It does not necessarily follow that any dependency of the British Crown should cease to be a British possession, because such a dependency is for a special purpose to be deemed to constitute, together with other dependencies, one British possession, and one part of His Majesty's dominions. The Imperial Act which we have been considering was intended to facilitate the arrest of fugitive offenders, and their return to the place whence they had fled and, in my opinion, the 39th section does not oblige us to hold that separate colonies, by the mere act of confederating, deprived themselves of a jurisdiction which had been conferred upon them severally for that very purpose."

Mr. Justice A'BECKETT, said :—

"I agree with the first branch of the argument, and accept the view that where we have to consider, for the purposes of the Fugitive Offenders Act, with regard to acts done in Victoria, in what British possession were they done, we should say that they were done in the Commonwealth of Australia. But it does not appear to me to follow from this that Victoria has ceased to be one of the units of complete criminal jurisdiction, with the ordinary administrative machinery which the Act intended to be used in the exercise of the powers which it conferred. This view, if correct, would dispose of both the objections to which I have referred, but I think that, even if we were constrained to hold that the words in section 3, in another part of Her Majesty's dominions,' were to be read as in the Commonwealth of Australia,' a Judge of the Supreme Court of Victoria would still be a Judge of a superior Court in the Commonwealth of Australia, though he is not a Judge appointed by the Commonwealth. In such part is not equivalent to of such part.' All that, it seems to me, would be necessary would be that the Judge exercising jurisdiction should do so in accordance with the law of

the Commonwealth, and this a Victorian Judge does although his powers are derived from the Government of Victoria, not from the Commonwealth": In re Mc Kelvey, 27 A.L.T., p. 198; (1906) V.L.R., 304.

The Victorian Full Court upheld the validity of the warrant and the prisoner was remanded for extradition.

Mc Kelvey's Case subsequently came before the High Court on appeal, (1906) 4 C.L.R., 265. The Chief Justice (Sir SAMUEL GRIFFITH) in delivering the judgment of the Court sustaining the decision of the Full Court of Victoria said :

"I am, therefore, of opinion that unless the Commonwealth Parliament has power under the Constitution to make laws under section 32 of the Imperial Fugitive Offenders Act 1881, or to deal with the surrender of fugitive offenders between the Commonwealth and other parts of the British dominions, the establishment of the Commonwealth has had no effect whatever upon the position and authority of the State of Victoria with regard to this Act. I am disposed to think-although it is not necessary to express any definite opinion upon the subject that the power conferred upon the Commonwealth Parliament to make laws with respect to external affairs probably includes the power to pass necessary laws to give effect to this Act. If it does not, then the establishment of the Commonwealth in no way affected the operation of administration of this Act in Victoria. If, on the other hand,-which I think is more probable the Constitution does empower the Commonwealth Parliament to deal with the subject of the rendition of fugitive offenders, all difficulty is removed by the express words of section 108 of the Constitution.'

69

It was contended that the administration of the Fugitive Offenders Act 1881 was not a law in force in Victoria at the time of the establishment of the Commonwealth within the meaning of section 108 of the Constitution. I can see no force in that contention. Amongst the powers possessed by the Governor, the Judges, and the magistrates of Victoria were powers under the Fugitive Offenders Act 1881, and the law which enabled them to exercise those powers was a law in force in Victoria, and, in my opinion, still continues a law there" Mc Kelvey v. Meagher, (1906) 4 C.L.R., 278.

Commencement of Act.

4. The Commonwealth shall be established and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time. after the passing of this Act make any such laws, to

come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

Starting the Machinery of Government.

The establishment of the Commonwealth of Australia involved the setting in motion of the machinery of a complete new Government with legislative, executive and judiciary organs-distinct from, and supplementary to, the six State Governments already existing. It is obvious that all this new machinery could not be set up, and started in full working order, in a single day. It was easy to proclaim that the Constitution of the Commonwealth should take effect on a certain day; but on that day, and for many days after, only very small instalments of actual political union could be achieved. Departments had to be organized, and laws passed; and in order that laws might be passed, and the Executive Government be given the representative character which would enable it to exercise its functions, it was first of all necessary that elections of members of the first Commonwealth Parliament should be held, and that the Parliament should meet and settle down to business.

The process of starting the machinery had received a good deal of attention from the framers of the Constitution; and the Constitution itself, and the covering clauses of the Imperial Act in which it is embodied, contain many provisions relating to the initiatory stage, and designed to enable the federal machinery to be set in motion smoothly and gradually. These provisions may be classified as follows:

1. Provisions for the performance of certain preliminaries before the actual establishment of the Constitution, to come into effect immediately upon the establishment (covering clauses 3, 4).

2. Provisions for the piecemeal transfer to the Commonwealth of certain functions theretofore belonging to the States (sections 69, 70).

3. Provisions for supplying the initial want of federal legislation by means of