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(7) "Power to make laws with respect to the Naval and Military defence of the Commonwealth and of the States [Sec. 51—vi.]. This power becomes exclusive on the establishment of the Commonwealth [Sec. 114].

(8) "Power to make laws with respect to the coinage of money [Sec. 51xii. and Sec. 115].

(9) "Power to make laws with respect to legal tender in anything but gold and silver coin [Sec. 115]."

"Of the 39 classes of subjects enumerated in Sec. 51, with respect to which the Federal Parliament has power to make laws, 13 are quite new and are applicable only to the Commonwealth, having been created by the Constitution, and are of such a character that they could only be vested in and effectually exercised by the Federal Parliament. They are:

(1) "Borrowing money on the public credit of the Commonwealth [SubSec. iv.].

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(2) Fisheries in Australian waters beyond territorial limits [Sub-Sec. x.]. (3) "The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the Courts of the States [Sub-Sec. xxiv.].

(4) "The recognition throughout the Commonwealth of the laws, the public acts and records, and the judicial proceedings of the States [SubSec. xxv.].

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(5) External affairs [Sub-Sec. xxix.].

(6) "The relations of the Commonwealth with the Islands of the Pacific [Sub-Sec. xxx.].

(7) "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws [Sub-Sec. xxxi.].

(8) "The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State [SubSec. xxxiii.].

(9) "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State [Sub-Sec. XXXV.].

(10) "Matters in respect of which this Constitution makes provision until the Parliament otherwise provides [Sub-Sec. xxxvi.].

(11) "Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred or which afterwards adopt the law [Sub-Sec. xxxvii.].

(12) "The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned of any power 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 [Sub-Sec. xxxviii.].

(13) "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 [Sub-Sec. xxxix.].

"Three of the 39 classes of subjects mentioned in the sub-sections to Sec. 51, viz. :—

(1) "Bounties (except aids on mining for gold, silver or metal)—after the imposition of uniform duties of Customs [Secs. 51-iii. and 90]. (2) "Naval and Military defence [Secs. 51-vi. and 114].

(3) "Coinage and legal tender [Secs. 51-xii. and 115]; formerly vested in the States-are exclusively within the competence of the Federal Parliament. Trade and Commerce is a concurrent power, but a branch of it, viz., the power to impose duties of Customs and Excise, becomes exclusively vested in the Federal Parliament on the imposition of uniform duties of Customs [Sec. 90]. This leaves in the list of 39 subjects [under Sec. 51] 23 old powers which formerly belonged to the States, but are now concurrently vested in the State Parliaments and the Federal Parliaments subject to the condition imposed by Sec. 109.}

These Concurrent Powers are as follows:

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(1) Astronomical and meteorological observations [51-viii.].

(2) "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.].

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(3) Bankruptcy and Insolvency [51-xvii.].

(4) "Bills of Exchange and Promissory Notes [51-xvi.].

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(5) Census and Statistics [51-xi.}.

(6) "Copyrights, Patents of Inventions and Designs and Trade Marks [51-xviii.].

(7) I Divorce and Matrimonial Causes; and in relation thereto, Parental rights, and the custody and guardianship of infants [51-xxii.].

(8) "Foreign Corporations, and trading or financial Corporations formed within the Commonwealth [51-xx.].

(9) "Immigration and Emigration [51-xxvii.].

(10)

"Influx of Criminals [51-xxviii].

(11) "Insurance, other than State Insurance; also State Insurance extending beyond the limits of the State concerned [51-xiv.].

(12) "Invalid and Old Age Pensions [51-xxiii.].

(13) 'Lighthouses, Lightships, Beacons and Buoys [51-vii.].

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(14) 'Marriage [51-xxi.].

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(15) 'Naturalisation and Aliens [51-xix.].

(16) "People of any race, other than the aboriginal race, in any State, for whom it is deemed necessary to make special laws [51-xxvi.].

(17) "Postal, Telegraphic, Telephonic, and other like services [51-v.]. (18) Quarantine [51—ix.].

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(19) 'Railways, control with respect to transport for Naval and Military purposes of the Commonwealth [51-xxxii.].

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(20) Railway Construction and Extension in any State with the consent of that State [51-xxxiv.].

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(21) Taxation, but so as not to discriminate between States or parts of States [51-ii.].

(22) Trade and Commerce with other countries, and among the States [51-i.]; except that on the imposition of uniform duties of Customs the power to impose duties of Customs and Excise becomes exclusively vested in the Federal Parliament [Sec. 90].

(23) "Weights and Measures [51-xv.]. "

"RESIDUARY LEGISLATIVE POWERS.-The residuary authority left to the Parliament of each State after the Exclusive and Concurrent grants to the Federal Parliament, embraces a large mass of constitutional, territorial, municipal and social powers, including control over :-Agriculture and the cultivation of the soil; Banking-State banking within the limits of the State; Borrowing Money on the sole credit of the State; Bounties and Aids on mining for gold, silver or metals; Charities-establishment and management of Asylums; Constitution of State-amendment, maintenance and execution of; Corporations-other than foreign corporations and trading or financial corporations; Courts-civil and criminal, maintenance and organisation for the execution of the laws of a State; Departments of State Governments-regulation of; Education; Factories; Fisheries within the State; Forests; Friendly Societies; Game; Health; Inspection of goods imported or proposed to be exported in order to detect fraud or prevent the spread of disease; Insurance-State insurance within the limits of the State; Intoxicants-regulation and prohibition of the manufacture within the State of fermented, distilled, or intoxicating liquids; Justice-Courts; Land— management and sale of public lands within the State; Licences-regulation of the issue of licences to conduct trade and industrial operations within the State, such as liquor licences and auctioneers' licences (subject, however, to Sec. 92); Manufactures-see Factories; Mines and Mining; Municipal Institutions and Local Government; Officers-appointment and payment of public officers of the State; Police-regulations, social and sanitary; Prisons -State prisons and reformatories; Railways-control and construction of Railways within the State, subject to Constitutional limitations [see

Restricted Powers']; The same limitation of being subject to Constitutional provisions applies also to all the following:-Rivers; Shops; Taxation for raising revenue for State purposes; Trade and Commerce within the State; Works-construction and promotion of public works and internal improvements."

"Restricted POWERS.-Some powers reserved to the States can only be exercised sub modo-subject to conditions and limitations specified by the Constitution :

“ Bounties.—A State may, with the consent of both Houses of the Federal Parliament expressed by resolution, grant any aid or bounty on the production or export of goods [Sec. 91].

"Naval and Military Forces.-A State may, with the consent of the Federal Parliament, raise and maintain Naval and Military Forces [Sec. 114].

"Railways.-A State may construct, use, and control its railways, but subject to Federal control with respect to transport for naval and military purposes of the Commonwealth (Sec. 51-xxxii.], and subject to the rule that in the use and control of its railways the State may be forbidden to make any preferences or discriminations which, in the judgment of the Inter-State Commission, are undue and unreasonable, or unjust to any State [Sec. 102].

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Rivers.-A State and its residents have the right to the reasonable use of the water of rivers within the State for conservation or irrigation [Secs. 98, 100].

"Taxation of Federal Property.-A State may, with the consent of the Federal Parliament, impose any tax on property of any kind belonging to the Commonwealth [Sec. 114].

"Taxation.-À State may impose taxation so long as it does not conflict with Federal taxation, and so long as it does not violate the rule of InterState freedom of trade and commerce. It is forbidden to impose duties of Customs and Excise after the imposition of uniform duties of Customs by the Federal Parliament [Secs. 90 and 92].

"New Legislative Powers.-By the Federal Constitution certain new legislative powers are conferred on the Parliament of each State, the exercise of which is necessary for the Constitution of the Federal Parliament. The Parliament of each State is permanently endowed with power to make laws for determining the times and places of elections of Senators for the State [Sec. 9]. Until the Federal Parliament otherwise provides: The Parliament of each State may make laws prescribing the method of choosing the Senators of that State." [And certain other new powers of the same nature which are dealt with in the Chapters on the Composition of the Upper and Lower Houses.]

In addition to this classification of legislative powers under the Australian Constitution, it should be noted that Sec. 109 of that Constitution makes definite provision for a conflict between laws passed by the Commonwealth and the State Parliaments. Thus :

Section 109. "When a 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."

Upon this section, Professor Moore ["Commonwealth of Australia," pp. 172-175] makes the following comment :—

"This provision operates where the State law conflicts with some exercise of power by the Commonwealth Parliament, not where it is inconsistent with the power itself. It assumes that each Legislature is acting within its proper range of power, where the State law would be good and operative but for the exercise of paramount power by the Commonwealth Parliament, the case

which has been described in America as that in which the State law fails, 'not because it is unconstitutional, but because it is superseded by the paramount authority of the national legislature.'* It applies whether the State law has been passed after the Commonwealth law or the Commonwealth law has been passed after the State law."

And, generally, it may be said that in considering the effect of this section, the principles laid down earlier in this chapter, in discussing the question of the distribution of legislative power under the Constitution of the United States, should again be kept in mind.

*Hare: "American Constitutional Law," p. 98.

CHAPTER IX.

THE EXECUTIVE.

The British North America Act [Sec. 9] makes the following Canada. provision for the exercise of the Executive power of the Dominion Government :-" The Executive Government and authority of and over Canada is hereby declared to continue and to be vested in the Queen." This Section makes no provision for the exercise of the executive power vested in the Queen except by Her Majesty herself. But as has already been pointed out in the chapter on "The Governor-General," the exercise of this power, vested in the Queen, is committed to the Governor-General by virtue of the Letters Patent ssued to him on his appointment.

The Constitution of Australia is more explicit upon this point® Australia. It provides [Sec. 61] that :

"The executive power of the Commonwealth is vested in the Queen, and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution and the laws of the Commonwealth."

To ascertain the exact meaning of the word "Commonwealth" in this Section it is necessary to refer to Section 6 of the Act constituting the Commonwealth of Australia, which covers and legalises the Constitution itself. That Section says that "the Commonwealth shall mean the Commonwealth of Australia as established under this Act."

Messrs. Quick and Garran [Annot. Const. Australian Comm., p. 368] define the Commonwealth as "a Quasi-National State [or Semi-National State] composed of a homogeneous and related people of ethnic unity, occupying a fixed territory of geographical unity, bound together by a common Constitution, under a dual system of provincial and central Government, each supreme within its own sphere and each subject to the common Constitution." Upon this definition they base [p. 701] the following analysis of the powers of the Commonwealth :

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