The criminal jurisdiction of the Federal Parliament is not only to be found scattered throughout various Acts of Parliament, but it has to some extent been codified and expressed in the Commonwealth Crimes Act, No. 12 of 1914, as amended by the Crimes Act, No. 6 of 1915. The first of these Acts deals, in Part II., with offences against the Commonwealth Government, defines the crime of treason and provides that any person found guilty thereof shall be liable to the punishment of death; inciting to mutiny in the army and assisting prisoners of war to escape are declared to be indictable offences for which the penalty is imprisonment for life, Part III. defines offences against the Administration of Justice; Part IV., offences against the coinage, Part V., forgery of Commonwealth instruments and documents; Part VI., offences by and against public officers; Part VIII., conspiracies against Commonwealth laws. The amending Act, No. 6 of 1915, passed 7th May, 1915, adds to the principal Act, section 86, a new offence as follows:- Any person who conspires with another person to defraud the Commonwealth shall be guilty of an indictable offence." It is declared that the new law shall have a retrospective operation extending back to the passing of the principal Act, No. 12 of 1914, passed 29th October, 1914.

The validity of this law was sustained by the High Court in The King v. Kidman (supra). It was so held by the whole Court on various grounds; it was sustained by the Chief Justice (Sir SAMUEL GRIFFITH) on the grounds that it was an offence to common law to defraud the King as head of the Commonwealth and that the power conferred by sub-section (XXXIX.) extends to enacting in the form of a declaratory Statute, the unwritten law of the Commonwealth. It was sustained by the other Judges on the ground exclusively that the law was authorized by sub-section (XXXIX.).

When Parliament has power to prohibit an Act such as strikes and lock-outs it has the incidental power to impose punishment for the violation of such prohibition: Stemp v. Australian Glass Manufacturing Co Ltd., (1917) 23 C.L.R., p. 226.

The Commonwealth Court of Conciliation and Arbitration presided over by a President being a Justice of the High Court appointed to the oi ce of President for seven years, and not for life, during good behaviour, under the Constitution, has an arbitration power but not a judicial power, and consequently it cannot enforce its

own awards, by the imposition of penalties; such awards, however, can be enforced by the High Court and by any State Court invested with Federal jurisdiction: Waterside Workers Federation v. J. W. Alexander Ltd., (1918) 24 C.L.R.

(8) EX POST FACTO LAWS OF THE COMMONWEALTH.

In the Constitution of the United States, there is a clause, Article 1, section 9, which expressly prohibits Congress and the legislatures of the States from passing ex post facto laws. There is no such prohibition in the Constitution of the Commonwealth. The laws to which the term "ex post facto" is properly applicable are those laws by which, according to Sir WILLIAM BLACKSTONE'S definition, an act indifferent in itself when committed, the person who committed it is afterwards declared to have been guilty of a crime and made liable to punishment. There is another class of laws which have, in a sense, a retrospective operation and of which Statutes, commonly called Acts of indemnity and Acts which impose duties of customs as from the date on which they are proposed in Parliament afford familiar instances. Entirely different considerations are applicable to such laws. The objection to ex post facto laws would not apply to these measures: per GRIFFITH, C.J. in The King v. Kidman, 20 C.L.R., p. 435.

Retrospective penal laws are usually deprecated for unfairness but they may be justified in great emergencies. Where a legislature of supreme power such as that of the United Kingdom passes a retrospective criminal law, no question of its validity can arise. It can only be criticized on the ground of its impropriety or inexpediency. The legislative power of the Commonwealth Parliament is not plenary in the sense that its ambit includes any enactment on any subject whatever. As was pointed out by Lord HALDANE, the scheme of the Constitution was to select certain subjects, thirty-eight in number, which are enumerated in section 51 and most of which were already within the ambit of the legislative powers of the federating Colonies, and to confer upon the Federal Parliament power to legislate with respect to them. These subjects do not in terms include a power to legislate with respect to the criminal law. On this point, indeed, the Judicial Committee remarked that : None of them relate to that general control over the liberty of the subject which must be shown to be transferred if it is to be regarded as vested in the Commonwealth": 20 C.L.R., p. 433.

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Section 51, sub-section (XXXIX.) declares to be within the legislative power of the Parliament 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." Per Lord HALDANE, L.C. in The Attorney-General for the Commonwealth v. Colonial Sugar Refining Co., (1914) A.C., 237.

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etc.

The High Court has held the words Matters incidental to be sufficient to enable Parliament to pass penal laws for the purpose of enforcing obedience to Federal legislation and that such penal laws may be made to operate not only to punish future prohibited acts but to declare past acts, done before the enactment of the penal laws and innocent when done, to be criminal and punishable by fine or imprisonment. Such is the Crimes Act, No. 6 of 1915 (7th May, 1915), section 2 declaring that persons conspiring to defraud the Commonwealth shall be guilty of an indictable offence and making it operative as from 29th October, 1914. Such an Act is the English Trading with the Enemy Act 1914, followed by the Commonwealth Act on the same subject, but utterly unsustainable retrospectively unless the Parliament has power to pass ex post facto laws with reference to the limited subject matters under its control, where it thinks the occasion so grave as to demand such measures: per ISAACS, J. in The King v. Kidman, (1915) 20 C.L.R., p. 425.

"The war at present raging," said POWERS, J. "has, I think, proved beyond question that it was necessary for the defence of the Empire to pass ex post facto laws, and the British Parliament passed such laws. The war has also proved, I think, that it was necessary, for the proper defence of the Commonwealth during the present war, and during any future war-apart from pl. xxxix.— that Parliament should have the power to pass ex post facto laws to prevent assistance being given to the enemy. I do not find anything in the Constitution-an instrument of government to lead me to hold that the Commonwealth Parliament, entrusted with the defence of the Commonwealth, is so impotent a body that aliens, neutrals or Australian subjects may defy His Majesty's Imperial Proclamation, and the Governor-General's Proclamation, upon the declaration of war, and openly commit breaches of a Trading with the Enemy Proclamation,' without any possibility of punishment by a

Commonwealth Statute; and that only those breaches which are committed after a Commonwealth Act has been assented to are punishable in Australia, especially as Parliament may not be sitting at the time war is declared. I personally think it is not only incidental to the defence of the Commonwealth but also absolutely necessary for the proper defence of the Commonwealth, that the Commonwealth should have the power to punish by ex post facto laws any persons who, in Australia, defy His Majesty's Proclamation or the Governor-General's Proclamation, even if the Proclamation forbids acts that are not, at the time the Proclamation is published acts punishable by common law or State laws, if the acts interfere with the exercise of any power vested in Parliament or in the Government of the Commonwealth, and that can only be done by the people knowing that the Commonwealth Parliament has power to pass ex post facto laws. The power appears to me to have been exercised in England solely as incidental to the execution of the power to defend the Realm and for the purpose of defence. If the Commonwealth Parliament has power in time of war to pass ex post facto laws to prevent interference with the efficient defence of the Commonwealth, it has power to do so at any time. What laws it passes (if passed with respect to a matter as to which the Commonwealth has power to make laws) it is for Parliament, not this Court, to say. If it has power to pass ex post facto laws for the naval and military defence of the Commonwealth it has power to pass ex post facto laws incidental to the execution of any power vested by the Constitution in the Government of the Commonwealth, or in any department or officer of the Commonwealth": per PoWERS, J., 20 C.L.R., at p. 460.

(9) THE POWERS INTER-SE OF THE COMMONWEALTH AND THE STATES.

The following are some leading canons of construction in Commonwealth Constitutional law derived from the foregoing cases :—

There are three sources of direct Constitutional authority to settle problems arising from the competition of Federal and State laws. The first is covering clause V. of the Constitution Act which states that this Act and all laws of the Commonwealth under the Constitution shall be binding on the Courts, Judges and people of every State notwithstanding anything in the laws of any State.” The second is section 109 of the Constitution which declares that I when the law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall to the extent

of the inconsistency be invalid." The third source is to be found in the express prohibitions contained in sections 114, 115, 116 and 117, and in certain implications which arise from the nature of the Federal scheme as a whole; implications necessary to preserve the harmonious working of the two sets of legislatures which are parts of the dual system of Government.

It must be taken to be of the essence of the Constitution that the Commonwealth is entitled, within the ambit of its authority, to exercise its legislative and executive powers in absolute freedom and without any interference or control whatever except that prescribed by the Constitution itself. This is the proposition on which the immunity of State and Federal instrumentalities and agencies from Federal or State interference is based: D'Emden v. Pedder, (1904) 1 C.L.R., p. 109.

This rule of construction is reciprocal and applies to any case of the Commonwealth attempting to fetter, control or interfere with the free exercise of the legislative or executive power of the States as well as to the States attempting to interfere with or encroach on Commonwealth powers and functions: The AttorneyGeneral of New South Wales v. The Brewery Employees' Union of New South Wales, (1909) 6 C.L.R., 469.

There is, however, a large class of cases with respect to which a similar power is for a time reserved to the States (concurrent powers). With respect to these matters there is consequently a possibility of conflicting legislation. This contingency is dealt with by section 109 of the Constitution, which provides that when a law of the State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall to the extent of the inconsistency be invalid. "This sentence," said Sir SAMUEL GRIFFITH," may be thus expanded supplying the verba subaudita :When a law of a State otherwise within its competency is inconsistent with a law of the Commonwealth on the same subject, such subject being also within the legislative competency of the Commonwealth, the latter shall prevail': (1903) 1 C.L.R., 111. If, in exercising its acknowledged power to regulate its own purely internal, domestic trade or police affairs a State enacts laws which are contrary to an Act of the Federal Parliament passed in pursuance of the Constitution in the exercise of its control over inter-state commerce the Courts will enter upon the inquiry whether the State laws have come into collision with the Federal act and thereby deprived a citizen of a right to which the Federal Act entitled him.