construction and maintenance of roads and means of communication is one of the most important, as it is necessarily one of the first, of the functions of government." The Federated Amalgamated Government Railway and Tramway Employees' Case, 4 Ç.L.R., 538.

(6) A COMMON LAW OF THE COMMONWEALTH.

The common law of England forms part of the laws of each State of the Commonwealth, and as such may be administered by the High Court under Federal legislation. The High Court being a Court of Appeal is, subject to review by the Privy Council, the final arbiter of the common law in all the States. Several Acts of the Federal Parliament such as the Judiciary Act 1903, section 80, the Copyright Act 1905, section 7, the Trade Mark Act 1905, section 5, the Bills of Exchange Act 1909-12, section 5 (2), the Marine Insurance Act 1909, section 4, the Crimes Act 1914, section 4, expressly declare that the common law shall to the extent prescribed govern all Courts exercising Federal jurisdiction. Apart from these enactments it has been contended " that there is no Federal common law except in relation to the executive powers of the Crown; that there cannot be any Federal common law in Australia, and that the Federal Courts of the Commonwealth will not possess any jurisdiction under the common law." A. Inglis Clark's Australian Constitutional Law, at p. 192.

In contradistinction to the common law of the several States there is in America growing up in the Federal Courts a common law of the United States, based equally upon the common law of England and of the several States. In the Federal Courts, both in civil and criminal matters there has been recognized, along certain lines, a common law of the United States which is certain to assert and re-assert itself more and more as the Federal jurisdiction grows and develops, particularly in cases involving the law merchant, the law of commercial paper and the like. The States may by Statute modify the common law of their States. Apart from such modification, by virtue of the right of independent interpretation possessed by the High Court and of its appellate jurisdiction, a uniform system of common law will be administered throughout the Commonwealth. See Quick and Garran's Annotated Constitution, p. 785.

There is a peace of the United States, as distinguished from the peace of the individual State, a breach whereof is possible within

the territorial limits of the State, as by an assault upon a Federal officer or Judge; per MILLER, J.; In re Neagle, (1890) 135 U.S., 69.

The question as to whether there is a common law of the Commonwealth applicable to the execution of its powers of administration, and whether such common law can be clothed with the form of Statute law by an Act of the Commonwealth Parliament was considered and to some extent approved by a majority of the High Court in The King v. Kidman, (1915) 20 C.L.R., p. 425. In that case the constitutionality of the retrospective operation of the Crimes Act 1915, section 2, was challenged in a criminal prosecution for conspiracy to defraud the Commonwealth. It was contended for the accused that the Act was not within the competence of the Commonwealth Parliament. The validity of the retrospective law was however sustained by the whole Court. The Chief Justice (Sir SAMUEL GRIFFITH) upheld it on the ground that whilst Parliament had no power to enact a criminal law operating only as ex post facto law, it had power under the Constitution, section 51 (XXXIX.). to embody the common law of the Commonwealth applicable to the execution of its powers in the form of Statute and that such a Statute, so far as it refers to the Court in which the offence against it could be prosecuted, was a law of procedure and therefore could be construed as retrospective in its operation. "I have no difficulty in holding," said Chief Justice, "that the indictment in this case discloses an offence against the common law of Australia": 20 C.L.R., p. 436. "This inquiry," continued the Chief Justice, raises a large and important question, namely, whether there is any common law in Australia independent of the common law which forms part of the law of the several States. It is contended for the respondents that there is no such law, and American decisions were cited in support of this contention."

"It is clear law," said the Chief Justice, that in the case of British Colonies acquired by settlement, the colonists carry their laws with them so far as they are applicable to the altered conditions. In the case of the Eastern colonies of Australia this general rule was supplemented by the Act 9 Geo. IV. c. 83. The laws so brought to Australia undoubtedly included all the common law relating to the rights and prerogatives of the Sovereign in his capacity as head of the Realm and the protection of his officers in enforcing them, including so much of the common law as imposed loss of life or liberty for infraction of it. When the several Australian

Colonies were erected this law was not abrogated, but continued in force as law of the respective Colonies applicable to the Sovereign as their head. It did not, however, become disintegrated into six separate codes of law, although it became part of an identical law applicable to six separate political entities. The same principles apply to laws of the United Kingdom of general application such as the Statute of Treasons. In so far as any part of this law was afterwards repealed in any Colony, it, no doubt, ceased to have effect in that Colony, but in all other respects it continued as before. When in 1901 the Australian Commonwealth was formed, this law continued to be the law applicable to the rights and prerogatives of the Sovereign as head of the States as before, subject to any such local repeal. But, so far as regards the Sovereign as head of the Commonwealth, the current which had been temporarily diverted into six parallel streams coalesced, and in that capacity he succeeded as head of the Commonwealth to the rights which he had had as head of the Colonies. I entertain no doubt that it was an offence at common law to conspire to defraud the King as head of the Realm, that on the settlement of Australia that part of the common law became part of the law of Australia, that on the establishment of the Commonwealth the same law made it an offence to conspire to defraud the Sovereign as head of the Commonwealth. Such a law, or to put it in other words, such a right to protection, seems, indeed, to be an essential attribute to the notion of sovereignty. I have, therefore, no difficulty in holding that the indictment in this case discloses an offence against the common law of Australia": per GRIFFITH, C.J., 20 C.L.R., 435-436.

Mr. Justice ISAACS based the validity of the law on the Constitution, section 51 (XXXIX.), by which he held Parliament had authority to pass penal laws not only prospective but retrospective in their operation. He rejected the argument that an offence at common law was not a Commonwealth offence. The Commonwealth," he held," was endowed with all powers necessary to protect itself and punish those who endeavour to obstruct it. The common law of England was brought to Australia by the first settlers, and remains, as the heritage of all who dwell upon the soil of this Continent, in full force and operation except so far as it has in any portion of the land been modified by a competent Legislature. For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and

whatever it implies it is the law of Australia, as much as if it were expressly so written. The necessary implication of unrestrictable right to perform its functions as a sovereign power-because in law it is the King who acts-carries with it the corollary that obstruction to the King in the exercise of his Commonwealth powers is, at common law, an offence with reference to the Constitution, and not with reference to any State law or the State Constitution." : per ISAACS, J., 20 C.L.R., pp. 445-446.

Mr. Justice HIGGINS held that section 51 (xXXIX.) settled the question beyond all doubt. "I do not like to commit myself prematurely to any dogma with regard to what is called the common law of the Commonwealth'; but," he said, I concur with the Chief Justice in thinking that the cases in the United States Courts which reject the existence of a common law of the United States are to say the least inapplicable to our Constitution": HIGGINS, J., 20 C.L.R., p. 454.

(7) CRIMINAL LAW OF THE COMMONWEALTH.

per

The Federal Constitution is singularly silent with reference to crimes, penalties and punishments. Only one penalty is imposed by it and that is by section 46 which enacts that disqualified persons sitting as members of Parliament are liable to a penalty of £100. By section 53 it is assumed but not enacted that there is authority to pass laws imposing fines and pecuniary penalties.

There is not to be found in the Australian Constitution as there is in the British North America Act, section 91, any express power to legislate with respect to criminal law; yet the Federal Parliament has passed laws imposing punishments and, in one case, the death penalty.

By the Constitution, section 51, sub-sections (1.) to (XXXVIII.), there are specific grants of legislative power to make laws conferring rights and imposing duties on residents of the Commonwealth, but none of these sub-sections confer any general control over the liberty of the subject nor do they, on their face, appear to grant power to impose punishment for disobedience to such laws. Where, then, is its jurisdiction in criminal matters to be found? A general control over liberty, it is conceded, must be shown to be transferred if it is to be regarded as vested in the Commonwealth Parliament. The Attorney-General for the Commonwealth v. Colonial Sugar

Refining Company, (1914) A.C., at p. 255; 17 C.L.R., p. 654, but there can now be no doubt regarding the control of the Commonwealth Parliament over the liberty of the subject in certain cases, and its power to impose punishment for disobedience to laws with respect to which it has power to legislate, such as the 38 subject

matters set out in section 51.

Some Federal writers have held that, even apart from and in the absence of any grant of necessary or incidental powers, Congress in America and the Parliament in the Commonwealth would have had authority to enforce the observance of its laws by the imposition. of criminal sanctions or penalties for disobedience, otherwise the grant of legislative powers would have been abortive; but section 51, sub-section (XXXIX.) seems to place the matter beyond all doubt in Australia. It grants to the Federal Parliament power to make laws with respect to "all matters incidental to the execution of any power vested by the Constitution in that Parliament or either House thereof or in the Government of the Commonwealth or in the Federal Judicature, or in any department or office of the Commonwealth."

"In my opinion," said GRIFFITH, C.J., "the power of the Commonwealth Parliament to enact criminal laws is to be found in pl. XXXIX. and nowhere else, and is a power to enact then as sanctions to secure the observance of substantive laws with respect to matters within the legislative, administrative or judicial power of the Commonwealth, and in that sense incidental to the execution of such powers" The King v. Kidman, 20 C.L.R., at p. 434.

Hence it is obvious that the offences as created and defined by such Acts as the Customs Act, for the prevention of smuggling, and by taxation acts for the protection of the revenue are well within the competence of the Federal Parliament. These penal laws are necessary and incidental to the execution and enforcement of the principal laws. Without the power of punishment for disregard all laws would be capable of evasion and would thereby be ineffective and impotent. This is not an implied power. It is not an inherent power. It is an independent and express power as high as any of the preceding 38 sub-sections of section 51 of the Constitution per ISAACS, J. in The King v. Kidman, (1915) 20 C.L.R., at p. 441.