We have read the full text of the opinion given by Mr. Ham, K.C., on this matter on 12th January, 1943.

The first point taken by Mr. Ham–a point which, as he says, if good, makes the rest of the opinion unnecessary–is quite independent of the wording of the Commonwealth Powers Bill as drafted. It is ‘that it is not possible under the Constitution for a State Parliament to grant to the Commonwealth Parliament power to make laws in respect to the matters proposed to be referred, and at the same time to limit the period during which such laws may operate’. (We observe in passing that, as Mr. Ham himself says, this is contrary to Mr. Ligertwood’s opinion, which is that the Bill, if amended as he suggests, would effect that object, though he thinks that, as drawn by the Convention, it would not do so.)

Mr. Ham substantially bases his view on three propositions:

1. That the Commonwealth power is in its nature perpetual and is not in any way dependent on the continuance or otherwise of the reference;
2. That all that the State Parliament can do, under section 51(xxxvii) of the Constitution, is to define and refer a ‘matter’; and
3. That the definition of the ‘matter’ cannot affect a time-limit for the duration of the Commonwealth laws in respect of the ‘matter’.

For the purpose of discussion we propose to deal first with propositions (2) and (3).

Mr. Ham assumes, as we understand him, that the definition of a matter referred cannot contain any provision, however expressed, whether by way of limitation of the ‘matter’ or otherwise, which will have the effect of limiting the duration of the authority given to the Commonwealth Parliament by the reference. That is to say, he holds that what the draftsmen were trying to do simply cannot be done.

For this assumption we can find no support in the Constitution, and no satisfactory reason given in the opinion. Mr. Ham begins by saying that laws passed under any of the paragraphs (i) to (xxxvi) of section 51 are ‘subject to this Constitution’ and depend for their force and operation solely on the Constitution. To this statement no exception can be taken.

He goes on to say ‘matters referred under paragraph (xxxvii) are “subject matters of possible legislation” subject to the Constitution in exactly the same way as any others of the matters enumerated in paragraphs (i) to (xxxvi), and laws with respect to them depend for their force and operation solely on the Constitution’. Our first criticism of this is that the Constitution speaks of ‘matters’, not ‘subject matters’, and that Mr. Ham, having introduced this qualification of the word, appears to rest upon it for the purpose of assuming that ‘matter’ referred must be confined to a categorical definition of a ‘subject’, simply, with no limitation or condition, however expressed, setting a time limit (or apparently any other kind of limit) to Commonwealth laws made with respect to the matter.

Examination of the other ‘matters’ in section 51 gives no support to this assumption.

Thus the ‘matter’ of paragraph (ii) of section 51 is: ‘Taxation, but so as not to discriminate between States or parts of States’. The ‘matter’ of paragraph (iii) is: ‘Bounties, but so that that such bounties shall be uniform throughout the Commonwealth’. And the ‘matter’ of the very paragraph, (xxxvii), which is the subject of the present controversy, is: ‘Matters referred, etc., but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law’.

Thus it appears from the Constitution itself that a ‘matter’ may comprise, not only a ‘subject matter’, but limitations and conditions on the power to legislate as to the subject-matter, and on the operation of laws made in exercise of the power.

What would be a ‘matter’ if contained in section 51 of the Constitution must be equally a ‘matter’ if contained in a reference by a State Parliament. How can it possibly be maintained, in face of the ‘matters’ expressed in the Constitution, that the Parliament of a State could not refer to the Commonwealth Parliament the ‘matter’, for instance, of ‘employment and unemployment, but so that the law shall not continue to operate after the expiration of five years’ from some specified or ascertainable date? What is there in the time factor, as distinguished from other factors, to prevent its being an appropriate limitation of the ‘matter’ referred?

Mr. Ham appears to hold the view that the limiting words in the paragraphs mentioned are limitations, not of the ‘matter’, but of the power to make laws with respect to the ‘matter’. The limitations are however definitely incorporated in the text of the several matters, and should in our opinion be construed as a limitation of the matters. But whether this is grammatically so or not is really quite immaterial. A matter with respect to which the Parliament has power to make laws, and the power to make laws with respect to the matter, are exactly co-extensive, and any limitation of either can, by appropriate words, be expressed as a limitation of the other: the effect in both cases being exactly the same. Thus paragraph (ii) might have been framed: ‘Taxation, not discriminating between States’. Paragraph (iii) might have been framed: ‘Bounties, uniform throughout the Commonwealth, on the production or export of goods’. There is no difference in effect between an adjectival limitation qualifying the subject, and an adverbial limitation which may arguably be construed as modifying the making of laws on the subject. It is a distinction without a difference.

Conversely, in paragraph (i) ‘Trade and commerce with other countries and among the States’, the limiting words are undeniably a limitation of the matter. The effect would have been precisely the same if the paragraph had read: ‘Trade and commerce, but so that the law shall extend only to trade and commerce with other countries and among the States’.

Lastly, in the case of the Commonwealth Powers Bill, paragraph (b) might have read: ‘Employment and unemployment during a period of five years’ etc., and so with all the other paragraphs. We cannot conceive any possible ground for the contention that ‘employment and unemployment’, qualified in that manner, is not purely and simply a ‘subject-matter of possible Commonwealth legislation’ as defined by Mr. Ham. And that illustration seems to us to be a conclusive answer to the proposition that it is impossible, in the definition of a ‘matter’, to effect a time limit to Commonwealth laws made with respect to the matter.

As to Mr. Ham’s statement that laws made with respect to matters referred under paragraph (xxxvii) ‘depend for their force and operation solely on the Constitution’: if he had said that they depend on the Constitution we should have assented, but they clearly depend also on something outside the Constitution–the fact that the matters have been referred by the State Parliament to the Parliament of the Commonwealth.

We can find no ground for suggesting that a State Parliament, in referring a matter to the Commonwealth Parliament, cannot define or limit the scope of the matter, or of the power to make laws with respect to the matter, in any way (not inconsistent with some express provision of the Constitution) so as effectively to restrict the exercise of the power granted by the reference. To take an extreme illustration: suppose that the State Parliaments desired federal legislation on a subject, but did not wish to leave the Commonwealth Parliament any discretion as to the nature of the legislation: we suggest that they could refer the matter, not only with the limitation that the Commonwealth law should not do this or that, but even with the stipulation that the only law authorized by the reference should be a law in the exact form specified in the referring Act, i.e., they could refer to the Parliament of the Commonwealth the ‘matter’ of a specified measure, which might, of course, include a clause limiting the duration of the measure. Of course, the Commonwealth Parliament would be under no obligation to legislate at all, but if it chose to legislate, such a reference would support a Commonwealth Act passed in those exact terms, and would not support any other legislation.

Mr. Ham would doubtless reply: ‘The Constitution does not empower a State Parliament to dictate to the Commonwealth Parliament what it shall enact’. Of course not: but it does empower a State Parliament in authorising the Commonwealth Parliament, by reference, to make laws with respect to a matter, to define and limit, to any extent it thinks fit, the scope of that authority. There is no dictation: the Commonwealth Parliament is free to exercise the power or not: but in exercising the power, it is limited by the terms of the reference.

Mr. Ham aptly sums up his view by a quotation from Tennyson’s ‘Tithonus’: ‘The Gods themselves cannot recall their gifts’–adding that the Constitution authorises a gift of power by the States, but does not authorize a loan. The metaphor may as readily be turned against him: a gift need not be a monument more lasting than brass, and taller than the Pyramids; it may be something perishable and insignificant. It rests with the giver to decide what he gives: a fee simple or a term of years: an everlasting ‘matter’ or an ephemeral one. Whether the reference once given is revocable, is another question, with which we will deal later. On the present question, our conclusion is that it is competent to a State Parliament to refer a matter to the Commonwealth Parliament in such a way as effectively to limit the period during which laws made by virtue of the reference may operate.

In confirmation of this view, it should be noted that this power to refer is a power to be exercised by a State Parliament: and in accordance with the principle established by Hodge v. The Queen, 9 App. Cas. 117, and other cases, it should be regarded as a plenary power within the ambit of the authority given, not as a power delegated to an agent. It should be construed as including everything necessary to make the power effective for the purpose intended: the mode of its exercise being left to the discretion of the legislature.

We now come to Mr. Ham’s first proposition mentioned at the beginning of this opinion.

Mr. Ham’s view is that, when certain matters have been referred by a State Parliament, ‘those matters are added to the category of matters as to which the Parliament of the Commonwealth may legislate and thereafter it does not matter what happens to the State Act. It could be repealed or be re-enacted in a consolidation of State Acts, and this would not affect anything. Having made the reference the State Act has performed its function’. The correctness of this view, however, is more than doubtful. The reference is made by a legislature, and is a legislative Act. It may, as Mr. Ham admits, be repealed, but the repeal ‘affects nothing’. We can find no reason given for this view; he apparently deduces it from the terms of paragraph (xxxvii) itself. The consequences, however, are so extraordinary that unless it can be found to be clearly indicated in the Constitution we think it cannot be sustained. Prima facie, a law which a legislature makes, it can unmake: and this principle is surely applicable unless the Constitution contains express words or necessary intendment to the contrary. Express words there are none. Is there necessary intendment? It must be looked for in section 51(xxxvii) itself, because there is no relevant provision elsewhere. The word ‘referred’ is in itself a colourless word as regards finality. It is not a technical word. It is used in the present tense–a continuing tense. It is capable of meaning ‘stands referred’, for the time being: and indeed that seems the natural interpretation. If the fact of the matter having been once referred were all-important, we should have expected the perfect tense: ‘has been referred’.

There is one guide in the concluding words of the paragraph: ‘or which afterwards adopt the law’. Adoption of a law is a well-known practice of colonial legislatures: and no suggestion has ever been made that such adoption is irrevocable. In our opinion, a State Parliament which ‘adopts’ a law within the meaning of the paragraph can revoke the adoption. And why should an adopting State be in a stronger position that a referring State?

In the Uniform Tax case, 65 C.L.R., at page 416,⁽¹⁾ there is a dictum by the Chief Justice, Sir John Latham, which indicates that he also takes the view that a reference under section 51(xxxvii) is revocable.

It should be noted that paragraph (xxxvii) is taken from the Federal Council Act: which also contains an express provision that the Act shall cease to be in operation in respect to any colony which passes an Act to that effect: but that in that event all Acts passed meanwhile by the Council shall remain in force unless altered or repealed by the Council. That extraordinary result was the consequence of an express provision in the Imperial Act. There is no corresponding provision here. In its absence, and in view of the anomalous situation and the extraordinary consequences of a law that could not be effectively repealed by the Parliament that made it, we are of opinion that a reference by a State Parliament may be revoked by the State Parliament.

Mr. Ham’s next point is that, assuming that a time-limit may be made effective by an appropriate form of reference, the Commonwealth Powers Bill, as drawn, does not do that. He supports this by treating clause 2 and clause 4 of the Bill as separate and independent enactments: clause 2 declaring the matters referred (which he claims is all that a State Parliament can do) and clause 4 limiting the duration of the reference and laws made by virtue thereof–which he claims is and must be inoperative and void: with the result that the reference is either perpetual or void, according as the two provisions are severable or inseverable.

This in our opinion is a misreading of the Bill. The matters referred cannot be ascertained from clause 2 only, but from the Bill as a whole. Clause 4, so far from being a separate and independent enactment, is clearly an interpretation of clause 2: the words in clause 4, ‘the reference made by this Act’, relate back to clause 2, and explain the scope and meaning of the reference. After declaring that the reference shall continue in force for the period mentioned, the clause proceeds ‘and no law made by the Parliament of the Commonwealth with respect to matters referred to it by this Act, shall continue to have any force or effect, by virtue of this Act or the references made by this Act, after the expiration of that period’.

The words as to the continuance of the reference are based on the view of the revocability of the reference: but the Convention was aware that different opinions were held on that point, and the concluding words of clause 4 are quite independent of that, and do not depend on the continuance of the reference. They show a clear intention that both the matters referred, and the power to make laws with respect to the matters referred, should be limited to the duration of the period mentioned, and that the Act and the reference should not be deemed to support any legislation after that period had expired.

In our opinion, the meaning and effect of that clause is exactly the same as if a limitation to that effect had been repeated in every paragraph of clause 2, from (a) to (n): as, for instance:

(b) Employment and unemployment during the period etc. or

(b) Employment and unemployment, but so that no law shall continue to have any force or effect after the expiration of five years–etc.

That would have exactly the same effect as the Bill as it stands: the fact that the limiting interpretation is not attached to each paragraph of clause 2, but is contained in a separate clause, is a pure matter of form which makes no difference whatever in the meaning.

Mr. Ham seems to assume that the ‘matters’ as expressed in clause 2 are in some way written into the Constitution, whilst their definition in clause 4 is left outside. This is not so. Nothing is written into the Constitution: a State Parliament has no power to write anything into the Constitution. The Constitution is the authority for the reference of the matters, but the matters themselves are found outside the Constitution, in the State Act: and to ascertain the scope and limits of those matters, and the power of the Commonwealth to make laws with respect to those matters, the State Act must be looked at: not a part of it only, but the whole Act. When Mr. Ham says that clause 4 would be inoperative because the State Act, having made the reference in clause 2, would be functus officio, he seems to treat clause 4 as if it were contained in another Act passed later.

We are therefore of opinion that the Bill as drawn is effective to confer on the Parliament of the Commonwealth power to make laws in respect of the matters referred, but only for the period mentioned and not longer. Any Commonwealth enactment depending for its validity on the support of the matter referred would, after the expiration of that period, be left without that support, and would automatically become null and void just as would be any other Commonwealth enactment not within the specific powers of the Commonwealth Parliament. That, and nothing else, is meant by the words in

clause 4 of the Bill, that ‘No law made by the Parliament of the Commonwealth with respect to matters referred to it by this Act shall continue to have any force or effect, by virtue of this Act or the reference made by this Act, after the expiration of that period’.

To suggest, as Mr. Ham does, that the clause purports to ‘limit and restrict the power of the Commonwealth Parliament, and confine the duration of the laws it may make on subjects committed to it by the Constitution’, is to misread the clause. The clause is an integral part of a Bill designed to extend the powers of the Commonwealth Parliament, and which necessarily defines the limits of the extension.

Whilst we entertain no doubt that the Bill as drawn limits the reference in such a way as effectively to limit the duration of Commonwealth laws depending upon the reference for their validity, yet other Counsel do entertain such doubts, but think that the doubts can be removed by amendment of the Bill. We confirm our joint opinion of 13th January, in which we advised that the amendments therein set out, and attached hereto, though in our opinion unnecessary, should not be objected to.

[Vol. 35, p. 73]

Schedule of amendments of Commonwealth Powers Bill

3A. The matters referred to in section 2 of this Act shall be construed as matters limited in time to the period mentioned in section 4 of this Act, to the intent that section 2 shall be construed as referring the matters so limited and not otherwise.

1. Insert in clause 2 of the Bill, after the word ‘matters’, the words ‘(each of which shall be so limited as to give effect to section 4 of this Act)’; and
2. Add a new section 3A reading as follows:

(1) South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373.