the Parliament, and shall be presented to the GovernorGeneral for the Queen's assent.

The solution is curious and unique. In the first place it will be noticed that the scheme applies only to measures initiated in the House of Representatives, a fact significant of the parts which the two Houses are expected to play in government. Secondly, there is ample provision made for delay and for reconsideration by the House,1 and there is no obstacle to a resort to the familiar means of conference. The application of the principle of dissolution to the Second Chamber is not wholly a novelty, and was inspired in a measure by the constitution of South Australia.2 But in South Australia a dissolution of the Legislative Assembly must precede the dissolution of both Houses; and the Constitution of the Commonwealth avoids the appearance of punishing or putting pressure upon one House rather than the other. The mere double dissolution of the South Australian system may of course result in each House receiving a mandate from its constituents "to stick to its guns." For such a contingency the Commonwealth Constitution provides by establishing a joint sitting of the Senate and House, in which the Bill is disposed of by the vote of an absolute majority of the total number of members of both Houses. The requirement of an absolute majority of each House, in its separate sitting is to be found in most of the Constitutions of the colonies as the condition of various amendments; but the joint sitting is a novel feature in Australian politics. In the United States it is resorted to by the States Legislatures in case the Chambers have in separate sittings chosen different persons as Senators. And in the Constitution of the Commonwealth a joint sitting of the Houses of the State Parliament fills casual vacancies in

1 Prof. Burgess attaches great importance to repetition of the vote as a natural way of securing deliberation, maturity, and clear consciousness of purpose. He suggests a mode of facilitating constitutional amendments in the United States which probably was not without influence in the Convention (Political Science and Constitutional Law, vol. i., p. 152).

2 Constitutional Act Further Amendment Act, 1881, section 16.

the Senate (section 15). The French Constitution can be amended by a National Assembly consisting of the two Chambers in joint session, and the same body elects the President. In Switzerland the two Chambers of the Federal Assembly meet in joint session for three purposes; the decision of conflicts of jurisdiction between the federal authorities; the granting of pardons; and the election of the Federal Council, the Federal Tribunal, the Chancellor of the Confederation, and the Commander-in-Chief of the Federal Army.1

The real origin of the joint sitting provided for in section 57, however, is none of these; but rather the Norwegian system according to which the two Chambers (or rather the two parts into which the House is divided) meet as one for the purpose of composing their differences.

The system of section 57 is applicable to proposed laws of every kind but one-the amendmont of the Constitution. That matter will be referred to in its proper place; but it may be noted here as a curious fact that the provisions of section 128 for avoiding the obstacle of disagreement between the Houses are less cumbrous than those applicable to ordinary legislation. The reason is that the alteration of the Constitution is treated as pre-eminently a matter to be determined by direct vote of the electors.

Lowell, Governments and Parties in Continental Europe, vol. ii., p. 214.

CHAPTER VIII.

THE LEGISLATIVE POWER OF THE PARLIAMENT.

THE definite and limited character of the Commonwealth Government is indicated in the enumeration of the powers of its principal organ-the Parliament. The legislative power is not contained in any one or two sections; it is found in all parts of the Act, for, as has been observed, the power of Parliament pervades the whole instrument. But as the main object of federation was to put under a central legislature matters which could not be dealt with effectively, or at all, by the colonial legislatures, the statement of those matters in sections 51 and 52 is the very kernel of the measure. The other powers of Parliament, dispersed through the Constitution, are in general adjective rather than substantive; they relate not to independent matters, but to the regulation, explanation, or restriction of the powers contained in sections 51 and 52, or to the regulation of the departments of government, including, in some matters, the constituent elements of Parliament itself. The terms of graut are as follows:

Section 51. The Parliament shall, subject to this Constitution, have (section 52 exclusive) power to make laws for the peace, order, and good government of the Commonwealth with respect to: (matters enumerated).

The terms used correspond with the grant of power to the Dominion Parliament to make laws for the "peace, order, and good government of Canada." In Australia the

grant of legislative power to the colonies has been made in the same or similar terms. In the Australian Courts Act, 1828, and the Australian Constitutions Act, 1850, the word "welfare" is found in the place of the word "order," which is in the Act of 1842; the use of the one word or the other seems to be a matter of indifference; either appears to deserve the description by the Privy Council of the Canadian form: "apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to." The plenitude of the powers of a colonial legislature has been already referred to 2; and the words used in the grant indicate the intention of the Act to confer powers, which, though limited as to subject-matter, are, as to the subject-matters, of the same nature and extent as those which have received the most authentic judicial construction. In R. v. Burah, Lord Selborne described the powers of an Indian Legislature in terms which are applicable to colonial legislatures generally. He said: "The Indian Legislature has powers expressly limited by the Act of Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe those powers. But when acting within those limits it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument by which affirmatively the legislative powers were created, and by which negatively they are restricted. If what was done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction

1 R. v. Riel, L.R., 10 A.C. 675. Mr. Lefroy, in Legislative Power in Canada, p. 214 note, regards the substitution of "order" for "welfare" in the powers of the Dominion Parliament as "advised" and significant. 'See Chapter IV. 3L.R., 3 A. C. 889, 904.

by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions." That legislative powers are of the same nature where the subjects are limited by enumeration, appears from the judgment of the Privy Council in Hodge v. The Queen1 in relation to the powers of the Provincial Legislatures in Canada.

In America, the delegate character has been imputed not merely to the Congress, but also to the States' Legislatures, and the doctrine delegatus non potest delegare has greatly hampered their action. In the dependencies of Great Britain this doctrine has not been applied; and the Privy Council has recognized the validity of important delegations in the case of Indian, Canadian, and Australian Legislatures.? But as a mere incident of legislative power, these legislatures could not create and arm with general legislative authority a new legislative power not created or authorized by their Act of Constitution (R. v. Burah), certainly not if it were in substitution for the legislature and probably not if it were to exercise by way of delegation the whole legislative power. Even this restriction does not apply to legislatures which, either by special grant or as representative legislatures under the Colonial Laws Validity Act, 1865, section v., have the constituent power. The Commonwealth Parliament has not the full constituent power, and therefore comes under the restriction indicated. But, in accordance with the decision of the Privy Council in Hodge v. The Queen, the delegation of power over particular subjects will be a proper exercise of legislative discretion. It has been held in the United States that Congress cannot transfer its legislative powers to a State; but, as we have seen, the American doctrine is against delegation generally. In Canada, it has

'L.R., 9 A.C. 117.

2 India: R. v. Burah, L.R., 3 A.C. 889; Canada: The Queen v. Hodge, 9 A.C. 117; Australia (New South Wales): Powell v. Apollo Candle Company, 10 A.C. 282.