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The High Court Procedure Act 1903-1915, Jury Exemption Act 1905, and Evidence Act 1905, are necessary and incidental to the exercise of the judicial power of the Commonwealth under sections 71 and 76.

The Secret Commissions Act 1905 prohibiting agents accepting secret commissions in commercial transactions is incidental to the legislative power of Parliament with respect to inter-state and external trade and commerce under section 51 (1.) of the Constitution.

The Maternity Allowance Act 1912 is incidental to the power of Parliament under sections 81 and 82 of the Constitution to make appropriations of public money for Commonwealth purposes.

The Meat Export Trade Commission Act 1914 deals with matters incidental to the external trade of the Commonwealth under section 51 (1.).

The Crimes Act 1914-1915 providing penalties for violations of Commonwealth laws is necessary and incidental to the legislative powers of Parliament under section 51.

The Australian Soldiers' Repatriation Act 1917 is incidental to the naval and military defence power contained in the Constitution, section 51 (VI.).

The Commonwealth Workmen's Compensation Act 1912 relates to matters incidental to the administration of the public service and the conditions of employment therein.

The Governor-General's Residences Act 1906 is incidental to section 3 of the Constitution.

The Commonwealth Salaries Act 1907 waiving the immunity of Commonwealth officers to State taxation comes within the implied powers of Parliament under the Constitution, clause V.

The Parliamentary Papers Act 1908 is incidental to the privileges of Parliament under section 49 of the Constitution.

The Statutory Declarations Act 1911 is incidental to the exercise of legislative power under section 51, and to the execution of power vested in departments and officers of the Commonwealth.

The Arbitration (Public Service) Act 1911 deals with matters incidental to the appointment, remuneration and duties of officers of public service under section 52 (II.), section 67 and sections 81 and 82 of the Constitution.

The Commonwealth Conciliation and Arbitration Act, Part V., permitting the establishment of organizations as quasi corporations representing workers and employers in industrial disputes is valid as incidental to arbitration proceedings: Jumbunna Coal Mine Case, (1908) 6 C.L.R., at p. 320.

The Conciliation and Arbitration Act 1904-1915, section 6, prohibiting strikes and imposing penalties is valid being incidental to the exercise of the principal power, conciliation and arbitration: Stemp v. Australian Glass Manufacturing Co. Ltd., (1917) 23 C.L.R., 226.

Conducive or Helpful.

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In The King v. Kidman, (1915) 20 C.L.R., 425, it was sought to sustain the view that matters incidental" necessarily mean that the ancillary power exercised must be conducive or helpful to the enforcement of the principal power. This view was not accepted by the High Court. It was pointed out that the word used in the sub-section is "incidental" and not conducive ' and hence Parliament may legislate concerning any matter incidental to the execution of any power. The word "conducive" looks to some future result; incidental has no connotation of time. Expenses are "incidental to the execution of the powers of the Commonwealth as to naval and military defence; they can hardly be said to be conducive to it. In the Standard Dictionary "incidental " is explained as meaning "occurring in the course of or coming as result or an adjunct or something else; concomitant as incidental expenses." Hence the Parliament may pass incidental laws which are retrospective in their operation. Per HIGGINS, J., 20 C.L.R., at p. 453 and per GAVAN DUFFY and RICH, JJ., at p. 455.

Ancillary Power.

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The Australian Industries Preservation Act, sections 5 (1), 8 (1), might have been sustained in the United States had they been, to use the words of CHASE, C.J., 9 Wall., 41, at p. 44 :-" a necessary and proper means for carrying into execution some other power expressly granted or vested "-that is, some power other than the trade and commerce power-or, as he put it elsewhere in the same judgment, 9 Wall., 41, at p. 44:-" an appropriate and plainly adapted means to that end. The Australian Constitution in section 51 (XXXIX.) gives expressly a corresponding power as to

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matters incidental to the execution of any power vested by this Constitution in the Parliament," &c. The term incidental" is at least as wide as the term necessary and proper." Sub-section (XXXIX.) is no doubt made an express power for more abundant caution, although it would certainly have been implied in the absence of express bestowal. But before this legislation can be justified under that power, we must be satisfied that the State field of commerce has only been entered incidentally to the execution of the power granted by sub-section (xx.) (Corporations). That is to say, the primary object of the legislation must be, not the interference with the forbidden subject of State trade, but the control of the corporations the subject of the grant. If that were not so, the substantive power and the incident would be made to exchange places, an operation which no one will attempt to support as a valid exercise of power. Per BARTON, J. in Huddart Parker & Co. Proprietary Ltd. v. Moorhead, (1909) 8 C.L.R., 364.

Limit of Application.

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In the common rule case arising under the Commonwealth Conciliation and Arbitration Act, section 38 (f), it was sought to support the legislation on another ground, namely, that it was incidental to the settlement of the dispute in respect of which the award was made. The view presented was that the Court could act under sub-section 38 (f) whenever it was found necessary for the effective settlement of the actual dispute. It is true" (said Mr. Justice ISAACS) that the grant of a power carries with it the grant of all proper means not expressly prohibited to effectuate the power itself. No instance of this principle could be stronger than the case of the Attorney-General for Canada v. Cain, (1906) A.C., 542, where the Privy Council held that the legislative power to exclude aliens connoted the power to expel, as a necessary complement of the power of exclusion. But that was because the power of exclusion could not otherwise, even within its own admitted limits, be effectually exercised and enforced. The case is quite different when it is found that a given power, though fully and completely exercised and enforced, is not effectual to attain all the results desired or expected. The matter is then one for the consideration of the authority in whom resides the right of granting a power more extensive. It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the

purpose of more effectively coping with the evils intended to be met. The authority must be taken as it is created, taken to the full, but not exceeded. In other words, in the absence of express statement to the contrary, you may complement, but you may not supplement a granted power. I therefore concur in the judgment of the Court." Per ISAACS, J. in the Australian Boot Trade Employees' Federation r. Whybrow & Co., (1910) 11 C.L.R., at p. 338.

Federal Jurisdiction in Matters of Criminal Law.

The scheme of the Constitution in the distribution of legislative power is to select certain subjects (38 in number) which are enumerated in section 51, most of which were originally within the ambit of the legislative powers of the federated Colonies and to confer on the Federal Parliament power to legislate with respect to them. These subjects do not in terms, as does the British North America Act, section 91, include the power to legislate with respect to criminal law.

How, then, can the passing of the Commonwealth Crimes Act, No. 12 of 1914, and the Amending Crimes Act, No. 6 of 1915, be explained and justified? This question was answered by the High Court in the case of The King v. Kidman, (1916) 20 C.L.R., 448.

Our Constitution, section 51, confers on the Federal Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to " a number of subjects specified; including (at the end of the list) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth." The High Court was unanimous in holding that those words do no more than cover matters which are incidents in the exercise of some actually existing power conferred by Statute or by the common law. The imposition of such consequences, commonly spoken of as sanctions, which are generally in the form of penalties, is in the strictest sense of the term incidental to the execution of the power to make the law itself. With regard to matters incidental to the execution of powers vested in the Executive Government and in the Judicature, the express provisions of sub-section (XXXIX.) may perhaps be necessary. But the meaning of the term incidental' is the same in all cases. Per GRIFFITH,

C.J., 20 C.L.R., at p. 433.

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"The question," said ISAACS, J., "depends entirely on the meaning of sub-section (XXXIX.) of section 51 of the Constitution. The construction will probably be aided by first considering what is included in the words any power vested by this Constitution in the Government of the Commonwealth." Whenever any such power is given, there is given with it by implication every ancillary power that is necessary to the existence of the government, and the proper exercise of the direct power it is intended to execute. Such ancillary powers must, in my opinion, be truly incident to the main powers. in other words they must be impliedly included in the grant. That is how I understand the maxim Quando lex aliquid concedit, concedere videtur et illud, sine quo res ipsa esse non potest": 20 C.L.R.. at p. 440.

"The legislative power must extend further than the limits of mere incidence implied by law. It must have, and by concession it has, power to attach punishment to conduct not already punishable. It may say that any attempted invasion by force on the field of Commonwealth executive powers may not only be resisted and prevented, but also punished. Punishment connotes, from what has already been said, something quite unnecessary to the existence or exercise of the executive functions. But it is nevertheless for legislative purposes within the term matters incidental to the execution of the executive power. Punishment is an ordinary means employed by Legislatures to guard and assist the executive powers." Per ISAACS, J. in The King v. Kidman, 20 C.L.R., at pp. 440-441.

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"I am, said Mr. Justice HIGGINS, " by no means prepared to admit that, apart from it Parliament has no power to make disobedience to any of its laws an offence punishable criminally, a power to make laws with respect to a given subject say 'taxation — is very wide in scope. It appears to me to be wider even than a 'power to levy and collect taxes as in the United States Constitution."

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But," continued His Honor, section 51 (XXXIX.) seems to me to put beyond doubt the power of the Parliament to make laws as to frauds on the Commonwealth and for punishment of those who have been guilty of such frauds or have conspired to commit. them" 20 C.I..R., at p. 450.

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