CHAPTER IX. THE SUBJECTS OF THE LEGISLATIVE POWER OF THE PARLIAMENT. A DIVISION of the powers of the Parliament into direct and indirect affords a convenient basis of classification. DIRECT POWERS. A. Administrative Services Transferred to the Five of the subjects of legislative power enumerated in sec. 51 are identical with the subjects of administrative departments of the States transferred to the Commonwealth (sec. 69). Over "matters relating to these departments" the power of the Parliament is, by sec. 52, exclusive. 1. Defence. Sec. 51 contains two articles dealing immediately with this matter, viz.: vi. The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. xxxii. The control of the railways with respect to transport for the naval and military purposes of the Commonwealth. By sec. 114 a State may not, without the consent of the Commonwealth, raise or maintain any naval or military force; and by sec. 119 the Commonwealth shall protect every State against invasion, and, on the application of the Executive Government of the State, against domestic violence. There are several Imperial Statutes affecting colonial defences and colonial forces, viz., the Army Act, 1881 (secs. 175-177); Colonial Fortifications Act, 1877; Colonial Defences Act, 1865; Naval Discipline Acts, 1866 and 1884; Imperial Defence Act, 1888. 2. Posts, Telegraphs, and Telephones. Sec. 51 (v.). These services are subject to the control of the Commonwealth, not merely for foreign and intercolonial, but also for internal purposes. In all the colonies, postal, telegraphic, and telephonic communication has been a Government monopoly. 3. Lighthouses, Lightships, Beacons, and Buoys. Sec. 51 (vii.). 4. Quarantine. Sec. 51 (ix.). 5. "Customs and Excise" are dealt with under the general head of Finance and Trade. B. Administrative Services not Transferred to the These are all matters in which a uniform system is essential to the full utility of the services. The Commonwealth is given power to provide for them; but any provision which may be made does not legally supersede, and may exist concurrently with, the provision made by the States. 1. Astronomical and Meteorological Observations. Sec. 51 (viii.). 2. Census and Statistics. Sec. 51 (xi.). C. External Matters. 1. External Affairs. Sec. 51 (xxix.). This is a power the extent of which it is difficult to measure. The most important external matters which have engaged Australian attention are, with a few exceptions, the subjects of special articles; and the "external affairs" of the Commonwealth, like the "foreign affairs of the Empire, are primarily matters of administration rather than legislation. So far, however, as the conduct of external affairs may require the co-operation of the legislative power, the Parliament has authority to make provision. The enactment of laws for the execution of treaties made by the Imperial Government affecting the Commonwealth, or made by the Commonwealth itself under such powers as the Crown may confer upon it; of laws on extradition or neutrality, and the like; of laws giving effect to arrangements between the Commonwealth and other parts of the Empire-all these would clearly fall within article xxix. The question arises, how far a legislature which has power over "external affairs may be described as "local and territorial," a description which, as has been seen, indicates a great restraint of power in the case of Colonial Legislatures. It may be suggested that, in virtue of this power, Acts of the Commonwealth Parliament will, like the Acts of the Imperial Government, and unlike the Acts of the Colonial Legislatures generally, be free of the restraint which prohibits laws intended to operate exterritorially. Such an effect would in no way contradict the grant of power to make laws for the Commonwealth, for there would be no claim to enforce the Acts in Courts outside the Commonwealth, and their recognition abroad would depend upon their accordance with the principles of Private International Law. And it would not affect the rule of construction under which Statutes are presumed not to operate exterritorially. But that rule would be, as in the case of the Imperial Parliament, a rule of construction merely, and not a rule in restraint of power. 2. Trade and Commerce with other countries and among the States. Sec. 51 (i.). (See "Finance and Trade.") 3. Fisheries in Australian waters beyond territorial limits. Sec. 51 (x.). This is one of the powers which was possessed by the Federal Council of Australasia; and it was exercised to regulate the pearl, shell, and bêche-de-mer fisheries in Australian waters adjacent to Queensland (51 Vic., No. 1) and Western Australia (52 Vic., No. 1). In each of the Acts a schedule declared what were to be deemed Australian waters under the Act. It is not without interest to note that the United States invoked these Acts in support of their claim to regulate the seal fisheries in the Behring Sea, but overlooked the limitation that the Act applied only to British ships and boats attached to British ships. 4. Naturalization and Aliens. Sec. 51 (xix.). 5. The people of any race other than the aboriginal race in any State, for whom it is deemed necessary to make special laws. Sec. 51 (xxvi.). This refers to the various race problems which arise in different parts of Australia, and enables the Parliament not merely to regulate the admission of alien races, but to establish laws concerning the Indian, Afghan, and Syrian hawkers; the Chinese miners, laundrymen, and market gardeners; the Japanese settlers and Kanaka plantation labourers of Queensland. 6. Immigration and Emigration. Sec. 51 (xxvii.). "Undesirable immigrants" has been a subject fruitful of discussion and legislation in the colonies at Intercolonial Conferences, and more than one attempt has been made to secure uniformity of legislation upon the subject. 7. The influx of criminals. Sec. 51 (xxviii.). This was one of the heads of legislative authority under the Federal Council Act of 1885; and although it would no doubt be included under "external affairs" or "immigration," it was retained in the Constitution as calling attention to a particular evil of which the colonies have long complained-the escape of criminals from the penal settlements of foreign Powers in the Pacific. 8. The relations of the Commonwealth with the islands of the Pacific. Sec. 51 (xxx.). This also was a head of legislative authority in the Federal Council Act, which was the outcome of the "Australasian Convention" of 1883, called to consider the "Annexation of neighbouring islands and the Federation of Australasia." The position of the Pacific Islands has been the most important matter of foreign or external policy with which Australasia has concerned herself; and like "external affairs" in general the matter has been one to be dealt with rather by diplomacy than legislation. At the Convention of 1883, Australian Ministers promulgated her "Monroe Doctrine" by declaring that "The further acquisition of Dominion in the Pacific south of the equator, by any foreign power, would be highly detrimental to the safety and well-being of the British possessions in Australasia and injurious to the interests of the Empire." Australian statesmen have often, and very recently, expressed the opinion that Australasian interests in the Pacific are over readily sacrificed by Imperial Ministers, and their hope no doubt is that the Governor-General may receive the powers of a High Commissioner in the Pacific, and may be instructed to exercise those powers on the advice of his Australian Ministry. How far this may be practicable will depend largely upon the attitude of New Zealand, whose recent action has gone some way to forestall the Commonwealth. Article xxx., therefore, stands for a policy which is certainly ambitious and may be aggressive. Even under present arrangements there is scope for the exercise of legislative authority, e.g. in the regulation of the trade with the islands, particularly the prohibition or regulation of the labour traffic and the punishment of offenders against the natives. D. Mercantile Law. 1. Banking, other than State banking, also State banking extending beyond the limits of the State concerned, the incorporation of banks and the issue of paper money. Sec. 51 (xiii.). Compare British North America Act, 1867, sec. 91 (15), and the interpretation by the Judicial Committee in Tennant v. Union Bank of Canada. "The legislative authority conferred by these words is not confined to the mere constitution of corporate bodies with the privilege of [1894] A. C. 31, 46. K |