The Australian Commonwealth starts with the idea that certain named powers and duties only are to be given to the Federal Parliament and the Federal Executive, and that with these exceptions, the constitution of each colony (henceforth to be known as a State), the powers of its Parliament, and the laws hitherto in force, are to remain unaltered (ss. 106-108). A noteworthy point emphasizing this initial difference between the Federation of Canada and that of Australia will be found in the mode of appointing the Governors of the different States. The Governors of all British Colonies are appointed by the Crown, that is, by the British Government. When Canada was federated the British Government gave up the appointment of governors for the different colonies which came into the federation, federation, and merely and merely retained the appointment of a Governor-General for the whole Dominion of Canada, leaving to him, with the advice of the Canadian Ministry, the appointment of lieutenant governors for the different provinces comprised in the Dominion. Australia has not followed this example. There is a Governor-General of Australia, appointed by the Crown, who is to be advised by a Federal Executive Council. But the Governors of the different States are to be in no way dependent on, or controlled by the Federal Parliament or Ministry. They will be appointed, as hitherto, directly by the Government of this Country.

The qualifications for membership and method of election of the Senate and the House of Representatives differ in the Australian Act from those prescribed for Canada, but it seems unnecessary to discuss them here in detail as after all they are matters which are chiefly of local concern. It is, however, noteworthy that the Act contemplates and provides for the electoral franchise not being uniform in the different States, and gives the Federal Parliament no power in that respect.

Its exclusive powers are restricted to making laws for the peace, order and good government of the Commonwealth with respect to (1) the seat of government and all places acquired by the Commonwealth for public purposes, (2) matters relating to any department of the public service, the control of which is vested in the Executive Government of the Commonwealth, and (3) any other matters declared by the Constitution to be within the exclusive power of the Parliament (s. 52).

It has further power (s. 51) to make laws for the "Peace, Order, and Good Government " of the Commonwealth with respect to many matters grouped under various headings. But this power is not exclusive. Each State may legislate with respect to any of the matters enumerated. But "when the law of any 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." (s. 109.) So far as they are not inconsistent, but auxiliary to or explanatory of each other, laws of the State and of the Commonwealth dealing with the same subject matter may both be valid and in force at the same time. In Canada, by the British North America Act (s. 92), the Legislature of each Province has exclusive powers to make laws with reference to various enumerated local matters and the Dominion Parliament is empowered to make laws for the "Peace, Order and Good Government of Canada" in reference to all matters not coming within the classes of subjects assigned exclusively to the Provincial legislatures. The matters for which the Dominion Parliament may legislate are set out in the Act (s. 91); and the section concludes with the general proviso "any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private assigned exclusively to the legislatures of Most of these subjects are the same as

nature

the Provinces."

those named in the later Australian Act-sometimes they are set forth in identical words. But the initial difference of the ideas on which the two Acts are framed makes it difficult to say what will be exact effect of the use of such words in the Australian Act. During the 33 years which have elapsed since the formation of the Canadian Federation many cases have occurred in which the powers of the Dominion and Provincial legislatures respectively have been called in question, and decisions elucidating the meaning of the Act have been given both by the courts in Canada, and by the British Privy Council. The decisions— at any rate of the latter Court-so far as the language of the Acts should be held to bear the same meaning, will probably be followed in cases which may arise as to the interpretation of the Australian Constitution. It may therefore be of interest to notice some of them.

The Australian Act gives the Federal Parliament power to make laws for the "Peace, Order, and good Government of Australia" with reference to matters classed under thirty-seven different headings, some of which are very comprehensive. Whatever does not come within one or other of them will be ultra vires, and must be dealt with by the State Legislature, if at all.

The meaning of the general words "to make laws for the Peace, Order and Good Government" has been discussed on several occasions, with reference to different enactments of the Canadian Parliament. It must, however, always be remembered, that under the Canadian Act, exclusive powers to make laws with reference to certain subjects were given to the Provincial Legislature, and exclusive powers to make laws with reference to certain other named matters to the Dominion Parliament. In most of the cases which have come before the Courts the question for decision was under which class did the matter in dispute properly fall. Where it could not be contended that the

particular matter was within the jurisdiction of the Provincial legislature, the Dominion Parliament, by virtue of these general words, had power to deal with it.1 Where, however, the exclusive powers given to the Provincial legislature could be invoked, the question arose whether they did not conflict with, and were not therefore overridden by the exclusive powers of the Federal Parliament, and it became necessary in each case to consider under which headings, if any, of the sections giving these powers to the two legislative bodies, the subject matter could more properly be classed. As the powers given to the Australian Parliament are not usually exclusive, but merely enable its laws to override those of the different States in cases where they conflict, it will not so often be necessary to determine which Parliament was the proper body to deal with the particular matter. But, it seems, that the effect of these general introductory words which occur in the Australian Act (s. 51) as well, must here be limited by the various sub-headings that follow them, and that a federal law which cannot be brought within one of these sub-headings will be of no validity.

The first and perhaps the most important matter for which the Australian Parliament may legislate is with respect to "Trade and commerce with other countries and among States." The Canadian Act gives the federal Parliament power to legislate for (2) "the regulation of trade and commerce." The meaning is probably very much the same as that which the words of the earlier Act have been construed to mean by the Privy Council. By the words "regulation of trade and commerce," power is given to make regulations relating to general trade and commerce. They would include political arrangements relating to

1 Citizens Insurance Co. v. Parsons ([1881] 7 App. Cas. 96); Russell v. The Queen (7 App. Cas. 836).

2 Citizens Insurance Co. v. Parsons ([1881], 7 App. Cas. 96).

trade requiring the sanction of Parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole Dominion." The power given does not authorise the Federal Parliament "to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a particular Province." The Privy Council consequently decided that the right of a Province to impose statutory conditions in the manner in which insurance business should be conducted was in no way taken away by the power of the Dominion Parliament to legislate with respect to "regulation of trade and commerce." As regards this particular business of insurance, possibly because of this decision, the Australian Act gives the Federal Parliament express power to make laws with respect to Heading xiv. "insurance other than State insurance, also State insurance extending beyond the limits of the State concerned." The meaning given to the general words would, however, be applicable where other matters not thus specifically mentioned had to be considered. In a later case1 the Board intimated that, though the regulation and government of a trade might involve the imposition of restrictions on its exercise for the purpose of preventing a nuisance or of preserving order, "a marked distinction was to be drawn between the prohibition or prevention of a trade, and the regulation or governance of it, indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated and governed." They consequently held that a bye-law prohibiting a trade from being carried on, could not be justified under the words of an Act authorising bye-laws for regulating and governing it. This decision was soon after approved.2

1

City of Toronto v. Virgo (1896, A.C. 88).

2 Att. Gen. Toronto v. Att. Gen. Canada (1896, A.C. 348).