51. (xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power225 which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia : HISTORICAL NOTE.-The Bill of 1891 contained a sub-clause in substantially the same words, except that in place of the single word "power" there was the phrase "legislative powers with respect to the affairs of the territory of the Commonwealth, or any part of it." (Conv. Deb., Syd., 1891, p. 698.) At the Adelaide session, in 1897, the sub-clause was passed practically in its present form. At the Melbourne session Mr. Barton explained that the words omitted were thought to be surplusage. Some discussion took place as to the scope of the sub-clause. (Conv. Deb, Melb., pp. 225-6.) Drafting amendments were made before the first report and after the fourth report. It is not very clear what powers are referred to in this sub-section. It is apparently another drag-net," intended to enable the Federal Parliament, with the concurrence of the State Parliaments, to exercise certain powers which are capable of being exercised within the Commonwealth, but which are not among the enumerated powers of the Federal Parliament, and which, not being vested in the State Parliaments, cannot be referred by those Parliaments under sub-sec. xxxvii. In contradistinction to sub-sec. xxxvii., which refers to powers exercisable by the State Parliaments, this sub-section refers to powers which at the establishment of the Constitution are "only" exercisable by either (a) the Parliament of the United Kingdom, or (b) the Federal Council of Australasia. We must therefore enquire what powers there are which are capable of being exercised within the Commonwealth," and for the “ peace, order, and good government of the Commonwealth," but which at the establishment of the Commonwealth are only exercisable by the Imperial Parliament or by the Federal Council. (a) POWERS EXERCISABLE BY THE IMPERIAL PARLIAMENT.-The powers referred to, being, at the establishment of the Constitution, "only" exercisable by the Imperial Parliament, must be powers which did not belong to the Parliaments of the colonies before they became States. But the Parliament of each colony had general powers to make laws for the peace, order, and good government of the colony, subject only (1) to the general exception expressed in the Colonial Laws Validity Act-that such laws must not be repugnant to any Imperial law expressly extending to the colony; (2) to certain particular exceptions expressed in the Constitution Act of each colony; and (3) to the limitation that such laws could not operate extra-territorially, except where express authority to that effect had been given by the Imperial Parliament. It would seem, therefore that the only powers to make laws for the peace, order, and government of a colony which at the establishment of the Commonwealth are "only exercisable" by the Imperial Parliament are powers which come within one of these three classes of exceptions or limitations. Does this sub-section enable the Federal Parliament, with the concurrence of the States, to pass laws for the exercise of any of these powers? When the Commonwealth Bill was before the Imperial Parliament, this sub-section was mentioned as one of the provisions of the Constitution which might raise a doubt as to the applicability of the Colonial Laws Validity Act. The opinion has already been expressed (pp. 347-352, supra) that this doubt was unfounded, and that the Commonwealth has no power to pass laws repugnant to Imperial legislation extending to the colonies-such as the Merchant Shipping Act of 1894. It seems equally clear that this sub-section does not enable the Federal Parliament to pass laws with an extra-territorial operation; the words "the exercise within the Commonwealth" exclude such a construction. Does it then enable the Federal Parliament, with the concurrence of the States, to exercise any powers denied to the States by the particular exceptions contained in the Constitution Acts of the States? Those Constitution Acts are Imperial laws, so that even this construction would involve, pro tanto, a conflict with the Colonial Laws Validity Act, which does not seem to be contemplated. It is difficult, therefore, to see what power can be conferred on the Federal Parliament by these words. (b) POWERS EXERCISABLE BY THE FEDERAL COUNCIL.-It is equally difficult to give any effect to the power to make laws in respect of the exercise of powers which, at the establishment of the Commonwealth, were only exercisable by the Federal Council. In the first place, the Federal Council Act is repealed by covering clause 7 of the Commonwealth Act, which took effect on the passing of the Act on 9th July, 1900; so that at the date of the establishment of the Commonwealth no powers whatever are exercisable by the Federal Council. (See remarks by Mr. Isaacs and Mr. Barton, Conv. Deb., Melb., pp. 225-6.) But apart from this question, the powers expressly given to the Federal Parliament seem to include every power which was ever exercisable by the Federal Council. The Federal Council only had independent legislative authority over seven subjects (see pp. 111-2, supra), every one of which is covered by sec. 51 of this Constitution; and its powers of legislation upon reference by the Parliaments of the colonies were certainly no wider, and probably narrower, than those given to the Parliament of the Commonwealth by sub-sec. xxxvii. 51. (xxxix.) Matters incidental 226 to the execution of any power vested by this Constitution227 in the Parliament228 or in either House thereof229, or in the Government of the Commonwealth230, or in the Federal Judicature231, department or officer of the Commonwealth. or in any HISTORICAL NOTE.-The Constitution of the United States empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." (Art. I. sec. viii. sub-s. 18.) In the Bill of 1891 the sub-clause stood: "Any matters necessary or incidental for carrying into execution the foregoing powers and any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth or in any Department or Officer thereof." In that form it was adopted at the Adelaide session in 1897. At the Sydney session Mr. Isaacs called attention to the absence of any mention of the Judiciary. (Conv. Deb., Syd., 1897, pp. 1190-1.) At the Melbourne session the sub-clause was amended, in Committee and after the fourth report. (Conv. Deb., Melb., pp. 226-7.) § 226. "Matters Incidental." In section 51, and in various other sections of the Constitution, certain legislative powers are conferred on the Federal Parliament. These powers are conveyed in general language. It was not necessary, and it would not have been appropriate, in framing a Constitution, to crowd it with minute details and elaborate specifications of power, or to declare the means by which those powers were to be carried into execution. (Martin v. Hunter's Lessee, I Wheat. 304.) This, however, is obvious: that every grant of power draws after it others not expressed, but consequential, incidental, and vital to its exercise; not substantive and independent, but auxiliary and subordinate (Anderson v. Dunn, 6 Wheat. 204; McCulloch v. Maryland, 4 Wheat. 316.) The nature of the instrument demanded that only its bold outlines and fundamental principles should be delineated and its important objects designated, leaving the minor ingredients which compose those objects to be deduced from the nature of the objects themselves. (Prigg v. Pennsylvania, 16 Pet. 539; United States v. Cruikshank, 92 U.S. 542. Baker, Annot. Const. 56) For example, the Federal Parliament is empowered to legislate concerning trade and commerce, customs and excise, and taxation. This necessarily implies a power to provide for the making and enforcement of commercial laws and revenue laws, and for the punishment of offences against those laws. Without that incidental power the substantive power would have been paralyzed and abortive. So, likewise, the power to provide for the defence of the Commonwealth necessarily implies the power to raise, pay, and discipline forces. The power to coin money implies the power to impose punishment for the circulation of counterfeit coin. The power to conduct the postal department implies the power to inflict punishment for stealing letters from that department. This sub-section has been introduced in order to give express authority to deal with these matters of machinery, procedure, execution, and "ways and means." It corresponds with Art. I. sec. 8, subs. 18, of the Constitution of the United States, and is a direct authority for the exercise of all necessary, incidental, or implied powers, to enable the Federal Parliament to carry out the great provisions of the instrument of government. As such, it is a distinct enlargement of power, and adds fulness and elasticity to every specific grant. (McCulloch v. Maryland, 4 Wheat. 316; Anderson v. Dunn, 6 Wheat. 204; United States v. Fisher, 2 Cranch, 358; United States v. Marigold, 9 How. 560. Baker, Annot. Const. 56.) "The powers of the government are limited, and its limits are not to be transcended. But the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution, are constitutional." (Per Marshall, C.J., in McCulloch v. Maryland, 4 Wheat. 421.) .. Every power vested in a government is in its nature sovereign, and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution." (Hamilton's Works, Lodge's ed. vol. iii. p. 181.) It was replied by the opposite school that to limit the powers of the government to those expressly set forth in the Constitution would render that instrument unfit to serve the purpose of a growing and changing nation, and would, by leaving men no legal means of attaining necessary but originally uncontemplated aims, provoke revolution and work the destruction of the Constitution itself. This latter contention derived much support from the fact that there were certain powers that had not been mentioned in the Constitution, but which were so obviously incident to a national government that they must be deemed to be raised by implication. For instance, the only offences which Congress is expressly empowered to punish are treason, the counterfeiting of the coin or securities of the government, and piracies and other offences against the law of nations. But it was very early held that the power to declare other acts to be offences against the United States, and punish them as such, existed as a necessary appendage to various general powers. So the power to regulate commerce covered the power to punish offences obstructing commerce; the power to manage the post office included the right to fix penalties on the theft of letters; and, in fact, a whole mass of criminal law grew up as a sanction to the civil laws which Congress had been directed to pass. lines along which this development of the implied powers of the government has chiefly progressed, have been those marked out by the three express powers of taxing and borrowing money, of regulating commerce, and of carrying on war." (Bryce, Amer. Comin. I. pp. 370-1.) The three "But the most important work was that done during the first half century, and especially by Chief Justice Marshall during his long tenure of the presidency of the Supreme Court (1801-1835). It is scarcely an exaggeration to call him, as an eminent American jurist has done, a second maker of the Constitution. I will not borrow the phrase which said of Augustus that he found Rome of brick and left it of marble, because Marshall's function was not to change but to develop. The Constitution was, except of course as regards the political scheme of national government, which was already established, rather a ground-plan than a city. It was, if I may pursue the metaphor, much what the site of Washington was at the beginning of this century, a symmetrical ground-plan for a great city, but with only some tall edifices standing here and there among fields and woods. Marshall left it what Washington has now become, a splendid and commodious capital within whose ample bounds there are still some vacant spaces and some mean dwellings, but which, built up and beautified as it has been by the taste and wealth of its rapidly-growing population, is worthy to be the centre of a mighty nation. Marshall was, of course, only one among seven judges, but his majestic intellect and the elevation of his character gave him such an ascendency, that he found himself only once in a minority on any constitutional question." (Id. p. 374.) "Had the Supreme Court been in those days possessed by the same spirit of strictness and literality which the Judicial Committee of the Privy Council has recently applied to the British North America Act of 1867 (the Act which creates the Constitution of the Canadian Federation), the United States Constitution would never have grown to be what it now is." (Id. p. 375.) § 227. "Power Vested by this Constitution." Having drawn attention in a general manner to the scope of this sub-section and illustrated it by authority, we now proceed to note several of its features which require separate treatment. It must be observed that the sub-section comprehends matters subsidiary and contributory to the execution of any power granted "by this Constitution." Now, there are five kinds of powers so granted: (1) Legislative power vested in the Parliament, (2) Regulative power vested in either House of Parliament, (3) Executive power vested in the Federal Administration, (4) Judicial power vested in the Federal Judicature, (5) Ministerial mandatory power vested in departments and officers. § 228. "Power Vested . . in the Parliament." The power of the Parliament is, for the most part, defined in sec. 51. But in addition to that complex section, with its prolific drag-net sub-sec. xxxvi., "Until the Parliament otherwise provides," there are numerous other sections in which important grants of power may be found. For example : METHOD OF CHOOSING SENATORS - Parliament may make laws prescribing (sec. 9). ROTATION OF SENATORS.-Parliament may make laws for the vacating of the places of senators, when the number of senators is increased or diminished (sec. 14). PRIVILEGES OF PARLIAMENT.- Parliament may declare the powers, privileges and immunities of the Senate and of the House of Representatives (sec. 49). SEAT OF GOVERNMENT. - Parliament may make laws respecting (sec. 52-i.), and may determine the site within certain limits (sec. 125). FEDERAL DEPARTMENTS.-Parliament may make laws for the regulation of the FEDERAL COURTS.- Parliament may create Federal Courts (sec. 71). ADDITIONAL ORIGINAL JURISDICTION.-Parliament may confer additional original jurisdiction on the High Court (sec. 76). POWER TO DEFINE JURISDICTION Parliament may define the jurisdiction of inferior Federal Courts, and invest State Courts with Federal jurisdiction (sec. 77). ACTIONS AGAINST COMMONWEALTH AND STATES.-Parliament may confer the right to bring actions against the Commonwealth or against States (sec. 78). DISTRIBUTION OF SURPLUS.-After five years from the imposition of uniform tariff Parliament may provide for the monthly payment to the several States of all surplus revenue on a fair basis (sec. 94). NAVIGATION, SHIPPING AND RAILWAYS. - Parliament may legislate concerning navigation, shipping, and State-owned railways so far as they affect inter-state and foreign trade and commerce (sec. 98). INTER-STATE COMMISSION. - Parliament may define the adjudicatory and administrative power of the Inter-State Commission with reference to trade and commerce (sec. 101). PREFERENCES AND DISCRIMINATIONS. -- Parliament may with respect to trade and commerce forbid preferences and discriminations subject to certain conditions (sec. 102). TAKING OVER PUBLIC DEBTS.-Parliament may take over from the States their STATE INSPECTION LAWS.—Parliament may annul State inspection laws (sec. 112). mandate directed to the State by sec. 120 to make provision for the detention of offenders against the laws of the Commonwealth (sec. 120). ADMISSION OF NEW STATES.-Parliament may admit or establish new States (sec. 121). GOVERNMENT OF TERRITORIES. - Parliament may make laws for the government of territory surrendered to it by any State or placed under its authority by the Queen (sec. 122). ALTERATION OF STATE BOUNDARIES. - Parliament, subject to certain conditions precedent, may alter the limits of a State (sec. 123). Sub-section xxxix. authorizes the Parliament to make laws relating to matters incidental to the execution of all these legislative powers, making them fully operative and effective, and enforcing them by appropriate legal sanctions. Each branch of the Federal Parliament is endowed with certain special powers, necessary for its internal government, and for the conduct of its own business. As soon as convenient, after the Senate first meets subsequent to a general election, it becomes its duty to divide the senators chosen for each State into two classes, as nearly equal as practicable, so as to provide for the order of their retirement in triennial batches (sec. 15). Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, must be determined by the House in which the question arises (sec. 47). Each House of the Parliament may make rules and orders with respect to- (1.) The mode in which its powers, privileges, and immunities may be exercised and upheld: (2.) The order and conduct of its business and proceedings either separately or jointly with the other House (sec. 50). |