Opinion Number. 295



Key Legislation

CONSTITUTION, ss. 51,51 (xiii). (xiv). (xx). (xxxix). 52. 71.107.109

The Prime Minister

A despatch, which has been received by His Excellency the Governor-General from the Secretary of State for the Colonies, has been referred to me by the Prime Minister for opinion.

The despatch is as follows:

  1. I have been requested by the High Commissioner for South Africa to obtain certain information with regard to the working of federal institutions, in view of the discussions which have arisen in connection with this question in South Africa.
  2. I enclose copies of two lists which I have received from him, the first of which enumerates all the matters which have been dealt with by the legislatures of Cape Colony, Natal, the Transvaal, the Orange River Colony, and Southern Rhodesia; while the second shows the various executive functions which have been carried out by the governments of those Colonies.
  3. 1 should be glad if Your Excellency would ask your legal advisers to favour me with their opinion which of these matters, under the existing constitution, would fall to be dealt with in Australia by the legislatures and executives of the Commonwealth and the States respectively, and which of them might be dealt with by both or either. In the case of matters falling within the latter category it would be interesting to know to what extent the Commonwealth and State Governments respectively may deal with such matters.
  4. 1 trust that your Ministers will feel able to assist me to obtain the information which Lord Selbourne desires.

It will be convenient at the outset to explain briefly the relations between the Commonwealth and the States in the matter of the distribution of the powers of government.

In fashioning the Federal Constitution the framers rejected the Canadian scheme of the distribution of powers and functions, and adopted that of the United States. In Canada a complete distribution of the powers of government was attempted, the Dominion being endowed with all the powers which were not expressly conferred upon the Provinces, so that all powers were assigned to one authority to the exclusion of the other.

In the Commonwealth Constitution, following that of the United States, certain specific powers of government are delegated to the Commonwealth, all other powers being retained by the States. No attempt is made at a complete distribution of powers between the Commonwealth and the States. To particularise the Australian scheme, it provides for:

  1. the conferring on the Commonwealth Parliament of plenary power to make laws for the peace, order, and good government of the Commonwealth with respect to the matters enumerated in section 51 of the Constitution, and of exclusive power with respect to the matters enumerated in section 52;
  2. the retention by the States of their original authority except in so far as it was taken from them (vide section 107);
  3. the vesting of the judicial power of the Commonwealth in a Federal Supreme Court, and in such other federal courts as the Parliament might create, and in such other courts as it might invest with federal jurisdiction;
  4. the creation of a Federal Executive.

The leading features of the Australian Commonwealth may be conveniently summed up as follows:

  1. The Commonwealth is formed of communities which were at the time immedi-ately preceding the union separate and independent in their relation to each other.
  2. The Commonwealth Government is a government of limited and enumerated powers, and the Parliaments of the States retain their residuary power of government over their territory (as pointed out above).
  3. The Commonwealth Government and the State Governments are each organised separately and independently for the performance of their functions, whether legislative, executive, or judicial. The powers of the States come from the or-ganisation and the powers which were theirs prior to the establishment of the Commonwealth.
  4. The legislative powers of the Commonwealth Parliament are not in general ex-clusive powers. A few exclusive powers are expressly conferred, including the power over certain matters of administration taken over by the Commonwealth. Others arise from the fact that some of the powers conferred on the Commonwealth are not derived from the existing powers of the States. As to concurrent powers, in the case of in-consistency, the law of the Commonwealth prevails, and the law of the State is void to the extent of the inconsistency (vide section 109).
  5. Subject to what has been said in (4) the Commonwealth and State Govern-ments are in their relations independent. There is no such supervision of the States in the exercise of the powers belonging to them as is exercised in Canada by the Dominion Government over the Provincial Governments.
  6. The observance by the Commonwealth and the States of the limits set to their respective powers is secured generally but not universally, by the action of the courts whose judicial duties may involve the determination of the validity of the authority under which acts are done.

(See More on the Commonwealth of Australia, pp. 68-71.)

Referring now more particularly to the question of the distribution of powers, I would point out that it is difficult to delimit the respective powers of the Common-wealth and the States in relation to any specified subjects, for the following reasons:

The legislative powers of the Commonwealth consist of certain enumerated powers which are set out in the Constitution-principally in section 51. Some of these powers are in their nature exclusive; while others are declared by section 52 of the Constitution to be so. As to all the powers which are not exclusive, the Commonwealth and the States have concurrent powers of legislation; but that of the Commonwealth is the paramount power, because when the law of a State is inconsistent with the law of the Commonwealth, the Commonwealth law prevails and the State law is to the extent of the inconsistency invalid.

As the Commonwealth Parliament has power to legislate with respect to matters incidental to its enumerated powers or which are necessary to give effect to them, it can to some extent deal with matters which generally speaking fall within the powers re-served to the States. As an illustration, take the subjects of'Accountants'. Incidentally, the Commonwealth has power to legislate with regard to accountants in connection with any of its enumerated powers, such as banking, insurance, companies, etc. in which it may be necessary to make provision for the qualification of accountants and their status.

It will be seen therefore that it is impracticable, if not impossible, to prepare a statement which will set out with exactness the respective powers of the Common-wealth and the States in regard to all the matters mentioned in the despatch.

I have, however, had prepared and appended two tables, one setting out the subjects of legislation mentioned in the despatch and the other the executive matters men-tioned; and in each it is indicated in a general way the authority to which the subject more particularly belongs. These are marked A and B.(1)

A classification of the respective powers of the Commonwealth and the States is to be found in Quick & Garran's Annotated Constitution of the Australian Com-monwealth, pp. 933-937. This work contains a complete history of the Federal move-ment in Australia and gives copious explanatory notes of each section of the Com-monwealth Constitution. It would therefore, in my opinion, prove of great interest to the authorities in South Africa, so I forward a copy of it to accompany this memorandum.

In addition to the tables and to Quick & Garran, I forward the undermentioned re-ports of important constitutional cases which have been decided in the High Court since the establishment of the Constitution:

report of the case of D'Emden v. Pedder;(2)

report of the cases of Deakin v. Webb and Lyne v. Webb;(3)

report of the case of Baxter v. Commissioners of Taxation, N.S. W.(4)

I also forward a copy of an Order in Council containing particulars of the Com-monwealth Administrative Arrangements.

[Vol. 6, p. 208]

(1) Copies of the tables were not retained.

(2) 1 C.L.R.91.

(3) 1 C.L.R. 585.

(4) 4C.L.R. 1087.