Opinion Number. 1716


commonwealth powers bill legislative powers of the parliament: reference of matters by states: MEANING OF ‘REFERRED’: EFFECT OF REFERRAL ON POWERS OF STATES: RELEVance of federal convention debates: validity of referral for limited period

Key Legislation

CONSTITUTION ss 51(ii), (xxxvii), 96, 107, 108: FEDERAL COUNCIL OF AUSTRALASIA ACT 1885 (U.K.) (48 & 49 Vict. c. 60) ss 15, 16


Through the courtesy of the Honourable R.S. Richards, we have had an opportunity of reading a printer’s proof of a speech delivered by the Honourable R.J. Rudall(1) in the South Australian House of Assembly on 27th January last.

Mr. Rudall reaches, or suggests as possible, some disturbing conclusions on several questions of law concerning the Commonwealth Powers Bill. While appreciating the erudition with which Mr. Rudall dealt with several points that have not hitherto been suggested in connexion with the Bill, we think he has overlooked some vital considerations, and we do not share his conclusions on any matters affecting the validity or efficacy of the Bill.

Let us take first of all Mr. Rudall’s view that section 51(xxxvii) of the Constitution was intended to have an exceedingly narrow scope. He says it was not intended to authorize the transfer of general powers to the Commonwealth but was inserted only for quasi-arbitral purposes, to provide for disputes on specific points between two or more States. If this interpretation is correct, there is a possibility that section 51(xxxvii) would be held not to support the Commonwealth Powers Bill.

In our opinion, however, this narrow interpretation is not tenable. Mr. Rudall bases it mainly on views expressed during the debates at the Federal Convention in 1898. Opinions to this effect were certainly expressed by experienced members of the Convention. But there is the greatest danger, for more reasons than one, in relying on extempore opinions upon completely novel points of law or of interpretation, struck off in the actual course of debate. Hence comes the rule laid down by the High Court that, while the successive drafts of the Constitution may be quoted for purposes of interpretation, the debates in the Convention may not. Tasmania v. Commonwealth, 1 C.L.R. at p. 333.

We agree with Mr. Rudall that light may be thrown upon section 51(xxxvii) by an examination of its history. Recourse to legislative history is indeed one of the most familiar means of resolving doubts about an obscure enactment. But we think the decisive point in the history of this provision is one that Mr. Rudall does not mention. As a matter of history, the paragraph was drawn from section 15 of the Federal Council Act 1885. This should suffice to dispose altogether of the suggested narrow interpretation. For by that section, the Federal Council was authorised to make laws on matters ‘referred’ to it by any colony and the matters which the colonies were permitted to refer were of the widest and most general character.

Section 15 of the Federal Council Act provides inter alia that:

… the Council shall have legislative authority in respect to the several matters following:

(i) Such of the following matters as may be referred to the Council by the legislatures of any two or more colonies, that is to say,–general defences, quarantine, patents of invention and discovery, copyright, bills of exchange and promissory notes, uniformity of weights and measures, recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony, naturalization of aliens, status of corporations and joint stock companies in other colonies than that in which they have been constituted, and any other matter of general Australasian interest with respect to which the legislatures of the several colonies can legislate within their own limits, and as to which it is deemed desirable that there should be a law of general application: provided that in such cases the Acts of the Council shall extend only to the colonies by whose legislatures the matter shall have been so referred to it, and such other colonies as may afterwards adopt the same.

Sir John Downer, on whose speech at the Convention Mr. Rudall chiefly relies, and who said that section 51(xxxvii) was intended to deal with intercolonial disputes, was plainly thinking at the time of section 16 in the Federal Council Act, which does in fact deal with that point. Section 16 provides as follows:

16. The Governors of any two or more of the colonies may, upon an address of the legislatures of such colonies, refer for the consideration and determination of the Council any questions relating to those colonies or their relations with one another, and the Council shall thereupon have authority to consider and determine by Act of Council the matters so referred to it.

The history of section 51(xxxvii) shows that the word ‘referred’ has here a wider meaning than those quoted by Mr. Rudall, and that there is no reason whatever for limiting the paragraph as he suggests. We think, moreover, that no support for his view can really be derived from the reference in the paragraph to ‘a law’, rather than the plural ‘laws’.

Mr. Rudall also suggests that possibly ‘a reference of power to the Commonwealth Parliament to legislate (may) carry with it an exclusive power to legislate’. We are clearly of opinion that this suggestion is unfounded. Mr. Rudall’s idea is that ‘you refer it so that some other body can exercise a power that you do not want to exercise yourself’. The flaw in this argument, in our opinion, is that it departs from the language of the Constitution, and erroneously treats a State as referring ‘powers’. Under section 51(xxxvii), a State refers not ‘powers’, but ‘matters’. It is the Constitution itself that thereupon gives to the Commonwealth a power to make laws with respect to the matters referred. The Constitution also sets out, in sections 107 and 108, what is to be the relation of State and Commonwealth powers. Section 107 says in emphatic terms that every power of a State shall continue as at the establishment of the Commonwealth unless it is by the Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. The power given by section 51(xxxvii) to make laws with respect to matters referred by the States is not by the Constitution made exclusive to the Commonwealth, nor withdrawn from the States. In our opinion, therefore, the State power continues by virtue of section 107, as a power concurrent with that of the Commonwealth.

Mr. Rudall next suggests that, under the Bill as drafted, the Commonwealth may have no power to expend, in the exercise of any of its new powers, any money raised in a State that has not referred the relevant matter. This conclusion is based on a statement made by Sir Edmund Barton during the Convention debates. As we have already suggested, there is a great deal of difference between the weight to be attached on the one hand to a considered judgment from the Bench, or to the concluded opinion of counsel, and on the other hand to an opinion on a novel and difficult point of law thrown out in the course of debate, no matter how eminent the speaker. We are inclined to think that Mr. Rudall has to some extent misunderstood the point that Sir Edmund Barton was attempting to make. But what Mr. Rudall suggests is that the ordinary appropriation power of the Commonwealth would not authorize the Commonwealth Parliament, for example, to appropriate funds from the Consolidated Revenue, raised by uniform taxation under section 51(ii), for a Commonwealth work carried out in a particular State under section 51(xxxvii), unless all States had referred the relevant matter to the Commonwealth. If some States only had ‘referred’ the matter, the Commonwealth would, he thinks, have to raise the money for the purpose exclusively in the States concerned–and possibly could not do even that unless the State had so expressed its ‘reference’ as to include specifically the financial aspects of the matter referred.

In our opinion, this contention is unfounded. It rests on the view that whereas the Commonwealth appropriation power exists in respect only of ‘the purposes of the Commonwealth’, it cannot be said to be a ‘purpose of the Commonwealth’ to provide funds for carrying out a law which, under section 51(xxxvii), can operate in certain States only. But how can it possibly be denied that the exercise of the power to make laws under section 51(xxxvii) of the Constitution itself is a ‘purpose of the Commonwealth’? Nor, in our opinion, does the principle involved deserve for a moment the description ‘daylight robbery’ which Mr. Rudall applies to it. After all, this is in essential the principle of section 96 of the Constitution, under which the taxpayers of the Commonwealth as a whole provide funds for the assistance of individual States including South Australia.

Finally Mr. Rudall takes the view that, although a State can validly define a matter referred, so as to limit it to the happenings of a specified period, it cannot define the matter so as to limit to a specified period the operation of the laws made by the Commonwealth in pursuance of the reference. With this view we definitely disagree. It is true, as Mr. Rudall says, that there are three ways in which a time limit may be imposed upon a legislature, namely:

  1. a limit to the time of the happenings upon which the law may operate;
  2. a limit to the time during which the law may operate;
  3. a limit to the time within which the law may be passed.

The time limit imposed by the Bill is clearly the second of these; and Mr. Rudall objects that this is not a limit to a matter, but a limit to the power of the Parliament to make laws with respect to a matter, and cannot be effected by a reference under section 51(xxxvii).

In our joint opinion of 21st January,(2) we said that 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.

We admit that we did not discriminate analytically between the second and the third kind of time limit, and that there is force in Mr. Rudall’s criticism, that the two examples we gave (‘employment and unemployment during five years’ and ‘employment and unemployment, but so that no law shall continue to have any force or effect after five years’), are not identical in effect. The former would, for instance, permit prosecution after the time, and even legislation after the time, with respect to happenings during the time; the latter would not. But this affects only the illustrations, and not our arguments and conclusions. We entertain no doubt that a time limit of the second kind, as well as a time limit of the first kind, can, by appropriate words, be expressed as directly a limitation of the matter referred. For example, this could, as we previously advised, be effected by referring the matter of a specified law, including a clause providing for the termination of its operation–a reference which would authorize the Commonwealth to pass that precise law and no other. Mr. Rudall himself regards a ‘particular’ reference of this kind as certainly contemplated by section 51(xxxvii). But the same result could equally be reached in countless other ways: e.g., ‘the regulation, during five years, of employment and unemployment’, ‘employment and unemployment, and administration relating thereto, during five years’; and so forth.

The fundamental vice of the argument, that a time limit to the ‘matter’ cannot effect the operation of a law with respect to the matter, rests upon the artificial separation of ‘power’, ‘law’ and ‘matter’ into three water-tight compartments; whereas the three are really interfused. The Parliament has power to make laws with respect to matters referred. The matter is a legislative matter; it cannot be divorced from the law. The power is a power to make laws as to a matter; it cannot be divorced from either the law or the matter.

The State Parliament refers a matter; it clearly not only can, but must, define the content of the matter. To define is to fix limits. Limits to what? To a matter with respect to which the Parliament has power to make laws. Every limitation of the matter referred is a limitation of the power of the Parliament to make laws with respect to the matter. To say that the State Parliament cannot limit the power which the Commonwealth Parliament has is a truism; but to say that the State Parliament cannot limit the power conferred by the Constitution by virtue of the reference of a matter limited by the State Parliament, is a contradiction in terms, which Euclid would rightly call absurd.

[Vol. 35, p. 106]

(1) Reginald John Rudall (1885–1955). South Australian House of Assembly, Member (Liberal and Country League) for Barossa 1933–1938; for Angas 1938–1944. South Australian Legislative Council, Member for Midland District 1944–1955. State Attorney-General 1946–1955.

(2) Opinion No. 1715.