Lighthouses, lightships, beacons, and buoys: But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment. § 114." SHALL BECOME TRANSFERRED." Order and Mode of Transfer. The State Departments of Posts, Telegraphs, and Telephones, and of Naval and Military Defence, were transferred to the Commonwealth, by proclamation under this section, on 1st March 1901. 66 As regards lighthouses, etc, and quarantine, no proclamation under this section was ever issued The explanation is that the section only gives power to take over a " Department" as a whole, with no means of defining or selecting what should be taken. There were no distinct and independent departments of lighthouses or quarantine. Many harbour beacons and buoys were of no Federal concern, and the administration of quarantine was blended with that of public health generally. Consequently, when it was desired to assume Federal control over marine lights and quarantine, this was done by legislation under paragraphs (VII) and (IX) of section 51 of the Constitution. See notes on those subsections. Official Status and Rights. Upon the transference of State Departments to the Commonwealth under section 69 of the Constitution the rights of the officers of the department are definitely ascertained and settled, and an officer in such a department who is retained in the service of the Commonwealth preserves all his "existing and accruing rights." Under section 84 of that instrument these rights include a right to be retained in the service at his existing rate of remuneration. It is a question as to whether he is liable to have his rate of remuneration reduced by a competent authority, as would be the case if he remained in the State service, and, if so, what is such competent authority. The Commonwealth Public Service Act 1902, section 78 (1) has no operation upon the "existing rights" declared by section 84 of the Constitution to be preserved to officers transferred to and retained in the service of the Commonwealth. Section 84 operates as a charge upon the Commonwealth revenue of a sum sufficient to give effect to it, and as a sufficient authority to the Executive Government of the Commonwealth to make the necessary payments to the persons entitled to receive them: Bond v The Commonwealth of Australia, (1903) 1 CL.R., 13; 25 A.L.T., 200; 9 A.L.R., 254. Certain Powers of Governors to vest in Governor-General. 70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions1144 which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires. § 114A. "ALL POWERS AND FUNCTIONS." Determining Amount of Retiring Allowance. An officer of a department of the public service of New South Wales who, on the transfer of the department to the Commonwealth, was retained in the service of the Commonwealth, was afterwards called upon to retire under the provisions of sec. 65 of the Commonwealth Public Service Act 1902, and so became entitled by virtue of section 84 of the Constitution to a gratuity calculated in accordance with the scale provided by section 60, sub-section (ii.) of the New South Wales Public Service Act 1895. It was held by the High Court that the discretion conferred by section 60 sub-section (ii) of the New South Wales Act as to the amount of the gratuity was vested in the Governor-General by virtue of section 70 of the Constitution: The State of New South Wales v. The Commonwealth, (1908) 6 C.L.R., 215. CHAPTER III.-THE JUDICATURE. Judicial Power and Courts. 71. The judicial115 power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court 116 of Australia, and in such other117 federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. Conspectus of Notes to Section 71. § 115. "THE JUDICIAL POWER." § 115. "THE JUDICIAL POWER." The Judicial power of the Commonwealth is the power to hear and determine suits and controversies, inter partes, arising in the primary or original jurisdiction and in the appellate or final jurisdiction defined by the Constitution, Chapter III. Distinction between Judicial and Ministerial Power. The Australian Industries Preservation Act 1906, section 15B authorizes the Comptroller-General of Customs to put certain questions to and to demand answers from, persons suspected of being concerned in contracts, in restraint of inter-state trade ; answers to such questions when given may be used as evidence against such persons in any subsequent legal proceedings. In the case of Huddart Parker & Co. Proprietary Ltd. v. Moorhead, (1909) 8 C.L.R., 331, the validity of section 15B was impeached and the question for determination was whether this compulsory discovery vested in a non-judicial officer, appertains to the judicial power. It was argued for the appellant that the proceeding objected to was in principle analogous to the examination of witnesses before a Justice of the Peace with a view to the commitment of an accused person for trial on indictment; that in the event of the accused being tried before a Justice of the High Court without a jury the analogy would be complete, while, if he were tried on indictment and a preliminary investigation before Justices of the Peace were necessary, the result would only be to divide the preliminary inquiry into two stages not differing in essential quality; that such proceedings before Justices of the Peace, are always regarded as judicial proceedings, that they must, therefore, be regarded as an exercise of the judicial power; and further that the interrogation of witnesses with a view to the administration of either the criminal or civil law is a matter that is in practice in British countries entrusted to judicial tribunals, and must, therefore, be regarded as within the term "judicial power as used in section 71 of the Constitution. For the Commonwealth it was admitted that there was an analogy between the powers conferred on the Comptroller-General and those exercised by examining justices. It was also conceded that of recent years Justices exercising the function of preliminary examination were sometimes regarded and spoken of as exercising judicial functions. It therefore became necessary to enquire what was the true nature of their functions. On this point the case of Cox v. Coleridge (1822) 1 B. & C., 37 is very instructive and authorative. This case which was referred to by the Chief Justice (Sir SAMUEL GRIFFITH) during the argument shows that at common law the original function of justices of the peace was ministerial and in no sense judicial. All the judicial functions which they have lately acquired have been conferred by Statute. Referring to Cox v. Coleridge, the Chief Justice (Sir SAMUEL GRIFFITH) said :- I think this case must be taken as an authoritative exposition of the law on the subject as it then stood It is true that since that time many laws have been passed both in England and Australia regulating the procedure in such inquiries, but I do not think that they have the effect of altering the essential nature of the inquiry, which cannot be regarded now, any more than then, as an exercise of judicial functions. If this is the correct view, it follows that the inquiry by the Comptroller-General, whether regarded as a substitute for, or as a preliminary step to, an inquiry by justices, cannot be regarded as a judicial function, and the foundation for this argument consequently fails. "It is plain that the power which, by section 71 of the Constitution, is to be exercised by Courts is a power of such a nature that an appeal will lie to the High Court from anything done in its exercise. It is equally plain that an appeal does not lie to any Court either from an order of commitment or an order of discharge made by examining justices. For this reason also I think that the proceedings before them cannot be regarded as an exercise of judicial power. Apart from these considerations, I am of opinion that the words 'judicial power' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." Per GRIFFITH, C.J., 8 C.L.R., at pp. 355-6. Mr Justice ISAACS said:" The question of what is judicial power cannot arise in a unitary State in the precise form in which it presents itself here, because, where the legislature is supreme, the only question is the ascertainment of its will For this reason English precedents of a strictly decisive character are not to be obtained It is only where, as in the United States of America and the Commonwealth of Australia, the Legislature is of itself bound to conform to an organic law that the question becomes acute. Even in America we do not find a perfect analogy, because the judicial power of the United States is not only vested in the Courts, but is limited in extent to the ten descriptions of cases specified in the Constitution, so that the test of what is judicial power,' is not to be found by merely ascertaining the ambit of the judicial power which the Courts there possess I have found no assistance from any of the American cited cases." After quoting and examining a number of English authorities, including Sir WM. BLACKSTONE'S Commentaries, vol. 1, p. 148, His Honor continued "Taking these high authorities as affording the guiding principles for our present purpose, it appears. to me the objection to section 15B that it is an exercise of the judicial power is untenable. It is ministerial and its analogue can be found in almost every Customs Act." |