persist in their divergent opinions, it is lost. Sometimes, too, a bill is referred back to the Federal Council for re-consideration, and is subsequently laid before the Chambers in an altered form. "After a law, a regulation, or a resolution has been adopted by both Chambers, the Federal Council publishes it officially, stating the date when it shall come into force, if that has not been done already in the text. Generally speaking, this may be expected to be the day of publication. But for those measures which are liable to the Referendum, what is termed a 'delai d'opposition' is mentioned, being a period of three months during which the right of appeal to the popular vote can be exercised. If there is no appeal, the measure comes into force after the expiration of the three months." IV. DEADLOCKS. The "deadlock" provisions of the Australian Constitution represent an important innovation in the making of written Constitutions. Their history is briefly summarised in the chapter on "the growth of the Australian Commonwealth." In their final form-as modified in one particular [i.e., that of the substitution of an absolute for a two-thirds majority at the joint sitting] by the Conference of Premiers held in 1899-they are contained in Sec. 57 of the Constitution, which is as follows :— "If the House of Representatives passes any proposed law and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives in the same or the next session again passes the proposed law with or without any amendments which have been made, suggested or agreed to by the Senate, and the Senate rejects or fails to pass it or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. "If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested or agreed to by the Senate, and the Senate rejects or fails to pass it or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives. "The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon any amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and the House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent." There are one or two points in this section to which attention may be drawn. Firstly, the requirement of an absolute majority of the total number of Senators and Representatives (not merely of those present at the joint sitting) would seem to open the door to ultimate rejection of a bill by mere abstention from attendance at the joint sitting on the part of its opponents. But, as Messrs. Quick and Garran point out* the joint sitting represents the last stage in a long contest: "If the supporters of a proposal * Ann. Const. Aust. Comm., p. 687. do not number an absolute majority they will be unlikely to win in any case, and if they do number an absolute majority, it is very unlikely that any member of that majority will absent himself and thereby betray his party at the moment when victory is within their grasp." Secondly, the "joint-sitting" provision is one which is "founded on the practice of conflicting legislative Chambers at times appointing representatives to meet in conference authorised to discuss questions in dispute and to suggest possible modes of settlement." This practice is recognised in Great Britain and her Colonies as well as in the United States. Thirdly, the provision for dissolution of the Senate is an unique experiment. No other second Chamber in any Federal system is liable to be dissolved on any question of general legislation By the Swiss Constitution [Art. 120] if the two Chambers are unable to agree on the question whether there shall be a total revision of the Constitution, the question is then referred to the people; and if a majority of electors voting support a revision, both Chambers are dissolved and the work of revision devolves upon the new Federal Legislature. But in respect of ordinary legislation there is no such provision."* * Ann. Const. Australian Comm., p. 687. CHAPTER VI. POWERS OF THE CENTRAL GOVERNMENT. In considering the powers of the Central Government under any form of union between separate States, it is most important to appreciate the distinction between the respective ways in which such powers may be both conferred and exercised. The distinction is one which falls conveniently into a three-fold division-that between Legislative, Executive and Judicial powers. "The distinction between the departments undoubtedly is that the Legislature makes, the Executive executes and the Judiciary construes the law."* But though this is in theory a fundamental distinction, it is not always easy in practice to draw the line between the three great departments of the exercise of the functions of Government. Messrs. Quick and Garran provide† an excellent analysis of the bearing of this difficulty upon the respective Federal Constitutions of the United States, Canada and Australia. "Judicial acts," they say, "have of necessity points of contact with both executive and legislative acts. In Great Britain, owing to the supremacy of the legislative power, the distinction has not been the subject of decision in the Courts, though it is recognised by Commentators. [See Wharton's Judicial Dictionary sub. tit. Judges.] "In this Constitution, however [i.e., the Australian Federal Constitution], each power is vested in distinct organs, and it becomes important to define the principles on which the distinction is based. A similar separation of functions is prescribed in the Constitution of the United States, as well as in the Constitutions of the States of the Union; and also, though to a less degree, in the Constitution of the Canadian Dominion. American and Canadian decisions are therefore important, but with some reservation in each case. The Constitution of the United States goes somewhat further in the separation of powers than this Constitution, because it not only vests them in distinct organs, but contains certain specific limitations, such as the prohibition on Congress and the State Legislatures to pass any bill of attainder or ex post facto law, and the prohibition on the State Legislatures to pass laws impairing the obligation of contracts [Art. 1., Secs. 9, 10]. On the other hand, the British North America Act does not go nearly so far; it does not expressly mention the 'judicial power,' and it does not establish a Federal judiciary as a co-ordinate department, but merely empowers the Dominion Parliament to establish Courts. [See Lefroy: Legislative power in Canada,' p. lvi.]." In this connection Messrs. Quick and Garran quote two passages which throw some light on the point at issue :— * Per Marshall, C. J., U.S., Wayman vs. Southard, 10 Wheat., 46. "Executive power is so intimately connected with legislative, that it is not easy to draw a line of separation; but the grant of executive power to the department created for the purpose of executing it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the Constitutions impose and to the incidental exceptions before referred to " [i.e., cases where the exercise of executive functions by the Legislature is warranted by Parliamentary usage, and incidental, necessary or proper to the exercise of legislative authority]. [Cooley: Constitutional Limitations, p. 106.] And as to the distinction between judicial and executive functions: "Doubtless the non-coercive part of executive business has no affinity with judicial business. . . . . The same may be said, for the most part, of such coercive work of the executive as consists in carrying out decisions of Judges-e.g., the imprisonment or execution of a convict. But there are other indispensable kinds of executive interference which have to be performed before or apart from any decisions arrived at by the judicial organ; and in this region the distinction between executive and judicial functions is liable to be evanescent or ambiguous, since executive officials have to 'interpret the law' in the first instance, and they ought to interpret it with as much judicial impartiality as possible." [Sedgwick: "Elements of Politics," p. 358.] [A rigid classification of the powers of a Central Government should include also "Incidental" and "Implied" powers, but these are hardly of such importance as to merit detailed consideration in a work of this nature.] CHAPTER VII. LEGISLATIVE POWERS OF THE Central GovERNMENT. The Legislative power of the Central Government in any form of union between several States may be considered under two main aspects; firstly, that of the nature of the power itself, i.e., whether it is the legislative exercise of a full or of a limited Sovereignty; and, secondly, in its relation to the legislative powers of local Governments under the Central Government, i.e., the distribution of the legislative power between the Central and the Local Governments. As to the first point, there is, in most forms of union between several States, no question about the nature of the legislative power of the Central Government. That power is limited by the Constitution which creates the Legislature. Thus the Constitution of the United States [Art. VI., Sec. 2] says that "this Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land." The point is clearly explained by Dicey (Law of the Constitution, p. 137):-"Every legislative assembly existing under a Federal Constitution is merely a subordinate law-making body, whose laws are of the nature of bye-laws, valid whilst within the authority conveyed upon it by the Constitution, but invalid or unconstitutional if they go beyond the limits of such authority." The authority conferred upon the Central Legislature by the Constitution is thus the limit of its authority in a union of several independent States. But in the case of unions of British Colonies under the British Crown there may be some question as to whether the power of the Central Legislature is plenary' or delegated by the Imperial Parliament. If it is to be considered as delegated, then it cannot in its turn be delegated. A good example of this kind of legislative authority is that of the Governor-General-of-India-in-Council. It has been decided that he could not create in India, and arm with legislative authority, a new legislative body not created or authorised by the Imperial Act constituting the Council of India. The question has arisen whether a similar limitation applies to the legislative authority of the Central Parliament of a union of British Colonies. There is ample authority for saying that this is not so. For instance, in delivering the judgment of the Privy Council in Hodge vs. The Queen [9 App. Cas. 132], Lord Fitzgerald said * Quoted from Wheeler : Confederation Law of Canada," p. 142. |