Taxation of Crown Leaseholds.

The Commonwealth Land Tax Assessment Act 1914, under which leasehold estates in State Crown lands are made liable to a land tax, does not amount to a tax on property belonging to the States which is forbidden by section 114 of the Constitution. "The plain design and purpose of the Act is that the lessee of Crown lands shall pay land tax upon and according to the value of his interest in the land and as such it forms a natural part of a general scheme of land taxation": Per GRIFFITH, C.J.—“ A tax is not placed on a State or in respect of any interest remaining in the State. It is placed on the lessee alone and in respect of what he himself possesses." Per ISAACS, J., Attorney-General (Queensland) v. The AttorneyGeneral (Commonwealth), (1915) 20 C.L.R., pp. 161-175.

Prohibitions Express and Implied.

In its judgment in Webb v. Outtrim, (1907) A.C., 81, the Privy Council referred to section 114 of the Constitution as showing that the inclusion of express prohibitions in the instrument negatived the argument advanced in favor of further and implied prohibitions in accordance with the maxim expressum facit cessare tacitum. This reasoning was combated in the judgment of a majority of the High Court in Baxter v. Commissioner of Taxes, New South Wales, (1907) 4 C.L.R., p. 1128, where the Chief Justice (Sir SAMUEL GRIFFITH) said:" The only section to which their Lordships expressly refer, which has any bearing on the application of the maxim expressum facit, &c., is section 114. A little consideration will show that this section is not framed for the purpose of exhaustively defining the prohibitions upon the exercise of State powers, but altogether alio intuitu."

States not to coin money.

115. A State shall not coin184 money, nor make anything but gold and silver coin a legal tender in payment of debts.

§ 184. "A STATE SHALL NOT COIN." Legal Tender.

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This section illustrates, in a peculiar manner, the distinction between exclusive" and "concurrent" powers. The coining of money is, by the joint operation of section 51 (XII.) and section 115, exclusively vested in the Commonwealth; it is, by the former,

granted to the Commonwealth, and by the latter withdrawn from the States. On the other hand the legal tender power is granted to the Commonwealth and remains in the States, subject to two conditions, viz., they can only make gold and silver a legal tender in payment of debts, and if there is any inconsistency between State and Commonwealth tender laws the latter prevails. See section 51 (XII.).

Express and Implied Limitations.

Sections 114, 115, 116 and 117 of the Constitution contain express limitations upon the legislative powers of the States. Those sections deal, though not in identical words, with the same matters as those dealt with respectively in Article I., section 10, sub-section 1; in Article VI., section 3, with the first Amendment, and in Article IV., section 2, and section 1 of the 14th Amendment, of the United States Constitution. That Constitution, therefore, as well as the Australian, contains express prohibitions, but it has never been held that they precluded the admission of those necessary implications which are admitted in all other cases. The framers of the Commonwealth Constitution may be taken to have been aware of this fact, and also of the fact that the doctrine of necessary implication had been applied to the Constitutions of the British Dependencies: In re Adam, 1 Moo. P.C.C., 460; Attorney-General v. Cain and Gilhula, (1906) A.C., 542. The maxim expressum facit, &c., has been often invoked in vain in English Courts: Colquhoun v. Brooks, 21 Q.B.D., 52, at p. 65, where LOPES, L.J., called it "a valuable servant, but a dangerous master." Per GRIFFITH, C.J. in Baxter v. Commissioner of Taxes, New South Wales, (1907) 4 C.L.R., at p. 1128.

any

law

Commonwealth not to legislate in respect of religion. 116. The Commonwealth shall not make for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Rights of residents in States.

117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability

or discrimination 185 which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

§ 185. "DISABILITY OR DISCRIMINATION.”

Distinction between Residence and Domicil.

The Administration Act of Western Australia (103), section 86, provides that:" Every executor and administrator shall pay to the Commissioner of Stamps duty on the final balance of the real and personal estate of the deceased according to the rules set forth in the second schedule. Provided that, in so far as beneficial interests pass to persons bona fide residents of and domiciled in Western Australia and occupying towards the deceased the relationship set forth in the third schedule, duty shall be calculated so as to charge only one half of the percentage on the property acquired by such person." Under this Act the plaintiffs, executors of the will of E. W. Davies, late of Fremantle, Western Australia, were called upon to pay succession duty in Western Australia upon the estate of their testator, including duty upon a sum of £8,055, representing the value of property passing under the will to one A. E. Davies, who at the death of the testator was alleged to be a British subject bona fide resident and domiciled in the State of Queensland. The rate of duty for the estate in question, according to the rules in the second schedule, was 9 per cent., and A. E. Davies was a person occupying to the deceased the relationship set forth in the third schedule. The Commissioner of Stamps demanded from the plaintiffs in respect to his share duty at the full rate of 9 per cent., which the plaintiffs paid under protest, and they then sued to recover one-half of that sum, claiming under section 117 of the Constitution. It was held by the High Court that the real ground of the discrimination prescribed by the section of the Administration Act was domicil and not residence, and that, consequently, the enactment was not void under section 117 of the Constitution, as setting up a discrimination between the residents of different States: Davies v. The State of Western Australia, (1904-5) 2 C.L.R., 29.

"Every State can impose such duties in respect of the whole of the personal property of the domiciled citizens of the State, whether that property is situate within or beyond its territorial

limits. The State may, therefore, derive a much larger revenue from the estates of such persons than from those of others who merely reside in the State without having their domicil in it. The area of taxation being larger in their case, the Legislature may well think it reasonable to reduce the rate in their favour. Moreover, it is a well-known fact that the double liability to death duties, as they are called, i.e., the liability to pay them both to the State of domicil and the State in which the property is situate, has considerable operation upon the minds of investors, and the Legislature might reasonably offer such a reduction as that in question as an inducement to persons to make their permanent home in Western Australia. Again, I think it is a sound rule of construction that a State Act should if possible be so interpreted as not to make it inconsistent with the Constitution-ut res magis valeat quam pereat. These reasons have led me-not without some fluctuation of opinion -to the conclusion that the word domiciled' should be read without the qualifying words 'bona fide' and should be construed as meaning having their legal domicil' in Western Australia. On this construction, the discrimination effected by the Act is not a discrimination as between residents of Western Australia and others, but as between persons having their legal domicil in Western Australia and others, and A. E. Davies, not having such a domicil is not entitled to the benefit of the reduction claimed. Whether, if his legal domicil were in Western Australia instead of in Queensland, he would be entitled to claim the reduction, is a question which it is not necessary to consider." Per GRIFFITH, C.J., 2 C.L.R., at p. 43.

"Mere residence in Western Australia does not give any of its inhabitants a better right to resist the higher rate of duty than Mr. Davies has, residing as he does in Queensland. But when residence and domicil concur, the concept of residence is so absorbed in that of domicil that it has no separate existence in thought. Residence in the place of domicil is the normal condition, and residence away from it is in the view of law not permanent until it becomes of such a kind as to merge in its turn into a domicil of choice. Consequently, without the Western Australian domicil, there is no discrimination between subjects of the King residing in Queensland and those residing in Western Australia. It is discrimination on the sole ground of residence outside the legislating State that the Constitution aims at in the 117th section. I do not think that is the ground of the discrimination in the Western Australian Administration Act." Per BARTON, J., 2 C.L.R., at p. 47.

"I find myself unable to avoid the conclusion that the expression domiciled in Western Australia' was used by the Legislature not in its popular sense but in the legal and technical sense. So interpreting the section and expanding the expression' domiciled' into its full meaning, the discrimination is in favour of persons within the named degrees of relationship who are 'bona fide residents of Western Australia and whose domicil the law deems to be in Western Australia.' It follows therefore that no resident of Western Australia can claim the reduction of duty unless he also has his legal domicil in Western Australia, and the Queensland resident not domiciled in Western Australia is in this respect subject to precisely the same discrimination, and to no further and no other." Per O'CONNOR, J., 2 C.L.R., at p. 52.

Recognition of laws, &c., of States.186

118. Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

§ 186. "RECOGNITION OF LAWS &c. OF STATES.”

LEGISLATION.

STATE LAWS AND RECORDS RECOGNITION ACT 1901.

All Courts within the Commonwealth are required to take judicial notice of Acts of the Parliament of a State, of the impression of the Seal of any State, of the signatures of certain high State officials. Proof of State proclamations, commissions, orders, regulations, Acts of State, may be given by the production of the Government Gazette of the State or a document purporting to be certified by the Clerk of the Executive of the State or purporting to be certified by a Minister of the Crown for the State. Votes and proceedings of State Parliaments and other public records may be proved in the manner prescribed by the Act. Proof of the incorporation of a company incorporated or registered in any State may be given by a certificate signed by the proper officer.

Protection of States from invasion and violence, 187

119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

L.P.

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