State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof. The Service and Execution of Process Act 1901, No. 11 of 1901, section 2, repeals the following Acts passed by the Federal Council of Australasia :—The Australasian Civil Process Act 1886; The Australasian Judgments Act 1886; The Australasian Testamentary Process Act 1897. The Defence Act 1903, No. 20 of 1903, section 6, declares that the Federal Garrison Act 1893, passed by the Federal Council of Australasia, shall cease to apply to the naval and military forces of the Commonwealth, or to any member thereof. Application of Colonial Boundaries Act-58 & 59 Vict. c. 34. 8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act. Constitution. 9. The Constitution of the Commonwealth shall be as follows: THE CONSTITUTION. The Constitution is divided as follows: Chapter I.-The Parliament: Part I.-General: Part II.-The Senate: Part III.-The House of Representa Chapter VIII.-Alteration of the Constitution. CHAPTER I. THE PARLIAMENT. PART I.-GENERAL. 1. The legislative Legislative power. power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called called "The Parliament," or "The Parliament of the Commonwealth." 66 § 19. LEGISLATIVE POWER." Plenary not Delegated Powers. When plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may be well exercised, either absolutely or conditionally; and in the latter case leaving to the discretion of some external authority the time and manner of carrying its legislation into effect as also the area over which it is to extend: Reg. v. Burah, (1878) 3 App. Cas., 889, P.C. The Indian Legislature having authority to pass certain laws had provided that special laws, which had the effect of excluding the jurisdiction of the High Court of India, should apply to certain districts specified, and " to certain other districts" if and when the Lieutenant Governor by notification in the Calcutta Gazette should declare that it should so apply. The question was whether it was within the legislative power of the Indian Council to pass such a law. The Privy Council (Per Lord SELBORNE) said: "Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred" (1878) 3 App. Cas., 889. The Provincial Legislature of Ontario (Canada), in dealing with the liquor traffic, created a new body called the Board of Licence Commissioners, and empowered them to pass resolutions defining the conditions of tavern licences, and to impose penalties for the infraction of such conditions. The Commissioners passed a by-law providing inter alia that licensed persons should not allow any billiard table to be used during the time prohibited by the Act or the by-law for the sale of liquor. They affixed a money penalty, in default distress, and in default of sufficient distress imprisonment with or without hard labour. Hodge was convicted for breach of the provision, and was fined, and was ultimately sent to gaol to be kept there for 15 days unless the fine was sooner paid. He appealed to the Privy Council. It was argued, first, that the Ontario Legislature itself had no power to legislate as the Commissioners had resolved, but it was held that the Legislature had such power if it had itself exercised it. Then it was contended that the principle of delegatus non delegare potest applied, and the power could not be delegated. Their Lordships, following Reg. v. Burah, rejected the suggestion that a Colonial Legislature is a delegate of the Imperial Parliament, and held that within the limits assigned by the Canadian Constitution it had powers of legislation as plenary and ample " as the Imperial Parliament in the plentitude of its power possessed or could bestow." Their Lordships said: "Within these limits of subjects and area the local Legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion of Canada would have had under like circumstances to confide to a municipal institution or body of its own creation, authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation" Hodge v. The Queen, (1884) 9 App. Cas., at p. 132. A Colonial Legislature is not a delegate of the Imperial Parliament. It is restricted in the area of its powers, but within that area it is plenary. Therefore the Customs Regulation Act of 1879, section 133, of New South Wales, is within the plenary powers of legislation conferred upon the Legislature of that Colony by the Constitution Act (schedule to 18 & 19 Vict. c. 54). Further, duties levied by an Order in Council issued under section 133, were held to be really levied by authority of the Legislature and not of the Executive. Under section 133" the opinion of the collector." whether right or wrong, authorizes the action of the Governor : Powell v. Apollo Candle Co., 54 L.J.,,P.C., 7; (1885) 10 App. Cas., 282. The Commonwealth Customs Act 1901, section 52, sub-section (g), provides that all goods the importation of which shall be prohibited by proclamation issued by the Governor-General in Council, shall be prohibited imports. A proclamation was issued prohibiting the importation of opium into the Commonwealth. Ah Way was convicted of the offence and appealed to the High Court. On his behalf it was argued that section 52, sub-section (g) was ultra vires of the Parliament. It was a delegation of legislative power by Parliament to the Governor-General. Such a delegation was repugnant to the Constitution, section 1, which provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament, consisting of the Sovereign and two Houses. It was stated by the American Courts, in dealing with the corresponding provision of the American Constitution, that it was an axiom in constitutional law, universally recognized as a principle essential to the integrity and maintenance of this system of government under the Constitution, that no part of the legislative power could be delegated by the Parliament to any other tribunal or body: Field v. Clark, 143 U.S., 649, at p. 697. On behalf of the Commonwealth it was contended that the proclamation was valid. It was not legislation by the GovernorGeneral. If it was an exercise of legislative power it was an exer- . cise of that power by Parliament itself. If not a direct exercise of legislative power by Parliament it was at any rate an indirect exercise of that power; the act of legislation was the passing of the Customs Act, and the proclamation was the exercise of a power by the subordinate authority appointed by Parliament for carrying the Act into effect. Parliament had power to confer such authority upon any person or body fitted to exercise it. It could not confer a power to legislate independently, but the power conferred might be quasi-legislative in that its exercise was necessary in order to give effect to the legislative Act of the Parliament in a particular direction. Sub-section (g) of section 52 merely conferred upon the Governor-General a discretion to determine to what goods other than those already mentioned, and under what conditions, the prohibition of importation should apply. It went no further than the legislation discussed in Reg. v. Burah, 3 App. Cas., 889. Hodge v. The Queen, 9 App. Cas., 117. Powell v. Apollo Candle Co. Ltd., 10 App. Cas., 282, which was held intra vires. It was held by the High Court that section 52, sub-section (g) of the Customs Act was not a delegation of legislative power, but conditional legislation, and therefore within the power conferred on Parliament by the Constitution, section 51, sub-sections I., II. The prohibition of importation was a legislative act of the Parliament itself, the effect of sub-section (g) being to confer upon the Governor-General in Council the discretion to determine, subject to section 56 of the Act, to which class of goods other than those specified in the section, and under what conditions, the prohibition shall apply. It was held, therefore, that a proclamation by the Governor-General in Council, prohibiting the importation into the Commonwealth of opium suitable for smoking, was valid: Baxter v. Ah Way, (1909) 8 C.L.R., 626. The Chief Justice (Sir SAMUEL GRIFFITH) after reviewing the Privy Council's decision said:" The same observations apply exactly to a law of the Conmonwealth or of a State under its Constitution. It is suggested that the words of the first section of the Constitution, which provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament, make a differBut that section is merely introductory to the provisions of the Constitution which deal with the Legislature. Then come other provisions dealing with the executive power, followed by another series dealing with the judicial power. The actual powers of the Parliament are conferred by section 51, and in their ambit they are unlimited. There being no objection to a conditional law being passed, this is a case of that sort : 8 C.L.R., at p. 634. ence. Mr. Justice O'CONNOR said :-" I think, therefore, that there can be no question whatever that the full powers of legislation which are conferred upon the Commonwealth Parliament to deal with Customs and to deal with trade and commerce between the Commonwealth and other countries embody a power to enact the conditional legislation now in question, which enables the Executive |