Opinion Number. 317

Subject

AUSTRALIAN FEDERAL SCHEME CREATION OF CENTRAL GOVERNMENT : DISTRIBUTION OF POWERS AND FUNCTIONS BETWEEN COMMONWEALTH AND STATES : TRANSITION FROM DISUNION TO UNION

Key Legislation

CONSTITUTION covering cl. 3; ss. 9, 10, 12, 29. 30. 32. 51 (i), (ii). (xxxv), (xxxvi), 62, 64. 67, 69. 70; Chapter III; ss. 83, 84, 85, 92, 95, 107, 108. 109 : THE BRITISH NORTH AMERICA ACT 1867 (IMP.), ss. 91, 92

Date
Client
The Secretary, Department of External Affairs

The subjects on which a memorandum(1)from this Department appears to be desired are:

  1. The experience of Australia with regard to the methods adopted in the creation of the central government and in the distribution of functions between the central government and the previously existing local governments.
  2. A full statement of the methods by which the Commonwealth Government assumed the various functions entrusted to it by the Constitution and created the Departments for carrying out these functions.
  3. The experience of Australia in the transition from disunion to union.

CREATION OF THE CENTRAL GOVERNMENT

For a historical account of the methods adopted in bringing about the federal union of Australia, reference is made to Quick & Garran's Annotated Constitution of the Australian Commonwealth, pp. 79-252. It will be seen that, after various abortive efforts to bring the question to an issue, the process which ultimately proved successful had two essential features:

  1. The direct intervention of the electors in the election of a representative National Convention to draft the Constitution, and in voting for the acceptance or rejection of the draft Constitution when framed.
  2. Concurrent legislation by the Colonies making provision at the outset for every stage of the proceeding, from the election of the Convention to the submission of the draft Constitution to the electors for acceptance, and its transmission, if accepted, to the Imperial Parliament to be passed into law (Quick & Garran, p. 154).

THE DISTRIBUTION OF FUNCTIONS

In the distribution of legislative power between the Commonwealth and the States, two main points stand out:

  1. the grant to the Federal Parliament of legislative power as to specified subjects only, leaving the general residue of legislative power to the States; and
  2. the fact that the Federal legislative power was, for the most part, not expressed to be exclusive so that the laws and legislative powers of the States, on subjects as to which the Federal Parliament had power to legislate, remained unimpaired till superseded by Federal legislation.

On both these points a departure was made from the example of Canada, and the American model was closely followed; and on both points there can be little doubt that experience has justified the course taken. Federal legislative power over a specific subject-matter is complete in itself and paramount, and carries with it all incidental powers necessary for its exercise. Federal legislative power with respect to the residue after specific State powers have been deducted is apt to find itself hampered in unexpected directions by the intrusion of a specific State power.

In Canada (speaking generally) the legislative power of the Provinces is specific, that of the Dominion residuary; and both powers are exclusive. But this general statement requires considerable modification. To be precise, what the Canadian Constitution(2)does is this:

  1. It specifies (in section 92) the matters in which the provincial legislatures have exclusive legislative power.
  2. It gives the Dominion Parliament legislative power as to all matters not coming within the classes o f subjects assigned exclusively to the provincial legislatures.
  3. It proceeds, ‘for greater certainty, but not so as to restrict the generality’ of the residuary gift, to declare that ‘(notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to’ certain enumerated classes of subjects.
  4. By the concluding words of section 91— as interpreted by the Privy Council— it appears to have excluded from the specific powers of the Provinces all matters coming within any of the classes of the subjects enumerated (for greater certainty) as included in the exclusive legislative power of the Dominion.

There are thus two sets of specific powers, which have been found in practice to overlap considerably, with the result that each set has had to be interpreted with reference to the other.

It follows that the Dominion Parliament has specific as well as residuary powers, and also that the specific powers of the Provinces, being subject to the paramount specific powers o f the Dominion, become in a sense residuary powers.

The net result is— at least to an outside observer—extremely complicated; and has not been made less so by a labyrinth of judicial decision. It is, of course, impossible
under a federal constitution to avoid occasional recourse to the courts to settle questions o f constitutional power; but the necessity is minimised if one clear-cut rule is established for the distribution of power.

Canada appears to have thought that the American rule (specific powers to the Dominion, residuary powers to the States) was in great measure responsible for the ‘State rights’ troubles which had recently convulsed the United States. In framing their own proposals for union they therefore began by reversing the rule o f distribution; but, not content with giving the Dominion Parliament residuary powers only they adopted the complicated compromise which has been described. Though Canadian constitutional authorities appear on the whole to be satisfied with the result, the mechanism by which the result is achieved appears to be too complex, and too devoid of a clear guiding principle, to be a satisfactory model for imitating.

The difficulties o f the Congress o f the United States have been due rather to the fewness o f its specific powers, and to the limitations with which some of them are hedged, than to the principle of distribution. Where the Constitution gives Congress a power in plain terms, its scope has always been effective, as may be illustrated by the vast extent which has been covered in virtue of the power to regulate trade and commerce with other countries and among the States.

The specific powers o f the Commonwealth Parliament are much more numerous, and cover a far wider field, than those o f the United States Congress, e.g. Congress has no power with respect to trade marks (except as relates to interstate and foreign trade), banking and company law (except incidentally to the exercise o f some specific power), marriage and divorce, interstate extradition, insurance.

So far, the powers of the Commonwealth Parliament have, on the whole, proved to be adequate. Attention may, however, be directed to a few points in which Australian (and, so far as it is applicable, American) experience has shown difficulties and weaknesses.

(a) The specific powers should be defined in words as general as possible, avoiding, as far as possible, all conditions, exceptions, and limitations, e.g.:

‘Trade and commerce with other countries, and among the States’.

The limitation to interstate and external commerce bisects the subject of trade and commerce, and makes a hard and fast division o f jurisdiction of which it is difficult to determine the boundaries, and which does not correspond with any natural distinction in the conduct of business. It would be more satisfactory, if feasible, to take power over ‘trade and commerce’ generally.

‘Conciliation and arbitration for the prevention and settlement o f industrial disputes extending beyond the limits of any one State’.

The limitation to disputes which cross a State boundary line again bisects the subject and leads to difficulties of interpretation. And the wording is open to criticism in
another respect: it does not deal with the whole subject-matter of the prevention and settlement o f industrial disputes, but is limited to a particular means of dealing with them— namely, conciliation and arbitration. A subject-matter ought, where practicable, to be so expressed as to allow every means which are appropriate to the end arrived at; and this power would have been more serviceable had it stood as a power to legislate with respect to ‘the prevention and settlement of industrial disputes’— without qualification.
‘Taxation; but so as not to discriminate between States or parts of States’.

Uniformity o f Federal taxation is, o f course, desirable; but it may be a question how far this should be enforced by any set form of words in the Constitution itself, and how far it should be left to the legislature. Any formal limitation should be carefully scrutinized to see that it does not go further than intended, and does not hamper, for instance, the utilization of local means of assessment, and differences founded on local conditions, where there is no substantial, intentional, or effective discrimination. See Commonwealth v. McKa y and R. v. Barger, 6 Commonwealth Law Reports 41.

(b) In connection with the Tariff, the Commonwealth Parliament has found a constitutional difficulty in legislating for what is here known as ‘the New Protection’. In imposing
protective duties, the Parliament desired to secure the benefits o f the protection, not only for the manufacturers, but also for wage-earners and consumers. As regards wage-earners, the difficulty was that the Commonwealth Parliament had no power to legislate with respect to industrial matters generally. The expedient was adopted of passing, in conjunction with the Customs Tariff, an Excise Tariff (Excise Tariff 1906) , imposing excise duties on certain protected articles of agricultural machinery, but exempting goods produced under conditions as to the remuneration of labour which were ascertained, by processes described in the Act, to be fair and reasonable.

This Act has recently beer, held by a majority judgment of the High Court of Australia to be unconstitutional*3*, mainly on the ground that in substance!! is not an exercise of the taxing power, but a regulation of wages, and incidentally on the ground that, assuming it to be an exercise of the taxing power, it discriminated between the States.

Tariff legislation is so intimately connected with the regulation of the manufacturing and producing industries that it is clearly desirable that the legislature which controls the one should control the other— so far at least as is necessary to enable effect to be given to the policy of the Tariff legislation, and to allow the protection afforded by the Tariff to operate equally. In Australia some of the States have adopted different machinery for securing adequate remuneration for labour—as Wages Boards, and Boards and Courts of Conciliation and Arbitration, whilst other States have no such legislation. When the Tariff walls between the States were thrown down, these local differences in industrial legislation operated, to some extent, to interfere with equality of industrial standards throughout the Commonwealth.

The advantage of not making the power of the Federal legislature exclusive—except where in its nature it must be so— is obvious. That power to be effective must embrace a large number of subjects, which cannot all be dealt with by the Federal Parliament at the outset; and until the Federal Parliament has time to occupy the field there appears to be no satisfactory reason why the State legislatures should not continue to occupy it.

THE TRANSITION FROM DISUNION TO UNION

The practical question o f the process of transition from disunion to union was very carefully considered in the framing of the Australian Constitution, which contains many provisions designed to facilitate the smooth working of Federal and State institutions during the transitionary period, till the Federal executive, legislature and judiciary were thoroughly organized, and until the field of Federal legislation should be
occupied.

(1) Before the appointed day—The Constitution Act (section 3) enabled the Queen, by proclamation, to appoint a day for the establishment of the Commonwealth; and enabled the first Governor-General to be appointed before the arrival of the appointed day. This was done before the appointed day. Lord Hopetoun, having been appointed Governor-General, arrived in Australia in time to send for a Prime Minister, and enable him to have a Ministry formed in readiness to accept office on the appointed day, and to make the necessary preliminary arrangements.

(2) On the appointed day—On the day of the establishment of the Commonwealth (1 January 1901), the Queen’s proclamation establishing the Commonwealth, and the Letters Patent constituting the office of Governor-General and Commander-in-Chief, were publicly read, and Lord Hopetoun was sworn in and made proclamation of his assumption of office. He then appointed his Federal Executive Council (Constitution, section 62). At a meeting of the Executive Council held the same day, seven Departments of State were established (Constitution, section 64), namely:

Department of External Affairs

Attorney-General’s Department

Department of Home Affairs

Treasury

Department of Trade and Customs

Department of Defence

Postmaster-General’s Department.

Seven of the Executive Councillors were appointed to administer these Departments, and thereby became ‘the Queen’s Ministers of State for the Commonwealth’ (Constitution, section 64)— the other two being members of the Cabinet, without portfolio.

All the official action above described was publicly notified on the same day in the first number of the Commonwealth of Australia Gazette. The only State Departments transferred to the Commonwealth on 1 January 1901, were the Departments of Customs and Excise (Constitution, section 69). By virtue of that section and sections 70, 84 and 85 those Departments automatically passed under Commonwealth control at the outset, with all their equipment of officers, buildings, records and stores; and still governed for the time being by the laws and regulations in force in each State, mutatis mutandis (section 70).

The six State Tariffs continued in force pending the passing o f a uniform Tariff by the Federal Parliament; duties continued, meanwhile, to be collected according to the State Tariffs, on the interstate transfer o f goods; and every officer of customs and excise continued to perform his duties as before, except that he was now a Commonwealth instead of a State officer.

(3) After the appointed day—There was as yet no Federal Parliament, and therefore no immediate possibility of passing Federal laws; but the Constitution made the necessary provisions for carrying on the functions o f government in the meantime. The Governor-General in Council had the power to appoint officers (section 67), and also had power (until the expiration of one month after the first meeting of Parliament) to draw from the Treasury and expend the moneys necessary to maintain the transferred Departments, and to hold the first election for the Parliament. The preliminary organization of the new Departments, and the preparations for the transfer of the State Departments, could thus be carried on.

Section 69 of the Constitution enabled the Governor-General, by proclamation, to effect the transfer o f certain other State Departments to the Commonwealth as soon as the Commonwealth Government was ready for them, namely, the Departments of—

Posts, telegraphs, and telephones:

Naval and military defence:

Lighthouses, lightships, beacons, and buoys:

Quarantine.

Proclamations were duly issued for the transfer of the Departments of Posts, Telegraphs, and Telephones, and Naval and Military Defence. As regards the other Departments mentioned, difficulties presented themselves in the way o f a wholesale transfer by proclamation, the quarantine services being inextricably combined with the Public Health Departments, over whose functions the Commonwealth Parliament had no authority, and the services in relation to lights, beacons, and buoys being similarly combined with the State harbour and river authorities. It was therefore decided to wait for Federal legislative authority in order to assume such control as was desirable in these matters, in lieu of action under section 69. The Commonwealth Parliament has recently (1908) passed a Quarantine Act, which will shortly come into operation. No Federal law relating to lights, beacons, and buoys has yet been passed.

The transferred Departments of Defence and Posts and Telegraphs (like those of Customs and Excise) were for the time being administered under the pre-existing State laws and regulations— with the aid of the mutatis mutandis provision of section 70, and the^rovisions of sections 84 and 85 relating to the transfer of officers,buiJdings,works, etc.

The Constitution also contained a number o f provisions which may be described as a provisional instalment o f Federal law pending legislation by the Commonwealth Parliament.
These prescribed certain necessary matters ‘until the Parliament otherwise provides’— power for Parliament to make the necessary provision, where not otherwise conferred, being expressly given in section 51 (xxxvi), which enables the Parliament to make laws with respect to ‘Matters in respect of which this Constitution makes provision until the Parliament otherwise provides’. The list of matters so referred to is as
follows:

Section 3—Salary of Governor-General

Section 7—Senate to be one electorate; number of Senators for each State to be six

Section 10—State electoral laws to apply to Senate elections

Section 22—Quorum of Senate

Section 24—Number of Members of the House of Representatives

Section 29—Electoral Divisions for House of Representatives

Section 30—Qualification of electors of Members of the House of Representatives

Section 31 —State electoral laws to apply to House of Representatives elections

Section 34—Qualifications of Member of House of Representatives (incidentally of Senators—see section 16)

Section 39—Quorum of House of Representatives

Section 46—Penalty for disqualified person sitting in either House

Section 47—Determination of disputed elections and returns

Section 48—Amount of allowance to Members of Parliament

Section 49—Powers, privileges and immunities of each House

Section 65—Maximum number of Ministers

Section 66—Appropriation for salaries of Ministers

Section 67—Appointment and removal of officers

Section 73—Conditions of and restrictions on appeals from State Supreme Courts to the High Court

Section 87—Return to the States of three-fourths of the net Customs and Excise revenue

Section 97—Laws as to receipt of revenue, expenditure of money, review and audit.

(4) First parliamentary election—Though the Federal Parliament had power to establish a uniform franchise and election laws for the election of its own members (except that a somewhat anomalous power was reserved to the State Parliaments to determine ‘the times and places o f elections o f Senators’) the first election had necessarily to be conducted in accordance with State franchise and laws— subject of course to any express provisions of the Constitution.

By sections 10 and 30, the franchise and electoral laws of each State were applied in that State. By section 29, each State was empowered, ‘until the Parliament otherwise
provides’, to determine the electoral divisions o f Members of the House of Representatives— in the absence of such provision, each State to be one electorate. Four of the States, in exercise o f this power, created single-member constituencies; but South Australia and Tasmania did not legislate, and each o f these States accordingly was one electorate for the first election of the House of Representatives. For the Senate, each State was one electorate returning six members.

The elections took place at the end of March—writs for the Senate being issued by the State Governors, for the House o f Representatives by the Governor-General (Constitution,
sections 12 and 32). The Parliament was opened on 9 May by the Duke of York, under a special Commission from the King.

(5) Federal legislation—After some important preliminary legislation—including an Appropriation Act, an Acts Interpretation Act, and an Audit A ct— a series of Customs and Excise Acts was passed, providing the machinery for a uniform system of collection and administration, and superseding the State laws in that regard— though the State Tariffs still remained in operation. A Post and Telegraph Act was also passed, providing for a uniform administration of the Post and Telegraph services, and for the most part superseding State laws and regulations—though for reasons connected with the financial provisions of the Constitution it was not found practicable for the time being to unify the postal rates, or to provide for the issue of postage stamps available throughout the Commonwealth.

Customs and Excise Tariffs— But the chief work of the long session of 1901-2 was the framing and passing of the first uniform Customs and Excise Tariffs for the Commonwealth. The departmental preparation of the Tariff necessarily occupied a long time. The Tariff resolutions were not proposed in the House o f Representatives until 8 October 1901, and the Customs Tariff was not finally passed into law until September 1902. But from the date of the Tariff resolutions being proposed, duties of customs and excise in accordance with them were, according to constitutional precedent, collected by the Department, and the collection of interstate duties was simultaneously abandoned. Thus, on 8 October 1901, came into effect that provision o f the Constitution (section 92) which declares that ‘On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’.

There was, however, one temporary exception from the principle of interstate free trade, due to the exceptional position of the State of Western Australia. That State owing to the extent of her mining industries, the large proportion of adult males in her population, and the comparative immaturity of her development in agriculture and manufactures, was collecting an abnormally large amount o f customs duty per head of population, and a considerable proportion of this was levied upon imports from other States. To prevent the diminution in the revenue o f the State which it was feared would follow from the sudden stoppage of interstate customs duties, the Constitution made special provision (section 95) for the continuance of customs duties on the transfer of goods to Western Australia, according to a sliding scale which annually reduced the maximum rates of those duties till they vanished at the end of five years from the imposition of the uniform Customs Tariff. It was not therefore till 8 October 1906, that this exception to the principle of interstate free trade from one end of the Commonwealth to the other was completely removed.

Public Service Act— Pending Federal legislation the officers of Departments transferred from the States to the Commonwealth had continued, though under Commonwealth control, to be subject to the Public Service laws (mutatis mutandis) of the State from which they were transferred; whilst there was no law at all to govern the rights, obligations, tenure of office and discipline of the new officers of the Commonwealth. But in the session of 1901-2 the Commonwealth Public Service Ac t 1902 was passed, providing for the regulation of the whole Public Service of the Commonwealth on a uniform basis— though certain inequalities resulting from the recognition of existing and accruing rights under State law of individual officers will only gradually disappear.

Franchise and E lectoral Law— In the same session were passed the Commonwealth Franchise Ac t 1902, which established a uniform franchise for the Federal Parliament; and the Commonwealth Electoral Act 1902, which provided electoral machinery, superseding, so far as future Federal elections are concerned, the State laws under which the first Federal Parliament was elccted.

The periodical preparation and revision o f Federal rolls for Federal elections, and State rolls for State elections, involves a duplication of work and a considerable amount of expense. The franchises in all the States are now almost identical with one another and with that of the Commonwealth (except that in Victoria suffrage has not yet been extended to women); and negotiations are now proceeding between the Commonwealth and the States with a view to harmonizing the laws and electoral systems as far as possible and utilizing the same rolls for Commonwealth and State purposes. Joint action in this respect is likely soon to be accomplished, with the result of a considerable saving of expense and probably a more effective revision o f the rolls.

The Federal Judiciary—The Constitution contemplated, as an essential part of the Federal system, the establishment of the High Court of Australia; to be not only a general court of appeal from the Supreme Courts o f the States— and a court whose decisions are final except so far as the Privy Council may grant special leave to appeal in any particular case— but to be also a court of original jurisdiction in certain classes of cases which are, by reason of the subject-matter or the parties, o f a specially Federal or interstate character. The Constitution also gives to the High Court special functions as the final interpreter of the Constitution in questions relating to the distribution of powers between Commonwealth and States—even the Privy Council having no power to grant special leave to appeal from its decisions upon such questions. The Commonwealth Parliament is also given power to extend the classes of cases in which the decision of the High Court is absolutely final, though Acts passed in the exercise of this power must be reserved for the King’s assent.

The necessary legislation for establishing the High Court and defining its jurisdiction and procedure was passed in 1903(4). The number o f Judges was in 1906 increased from three to five. Its appellate business was continually increased from the time of its establishment; and though an alternative right of appeal still exists from the State Supreme
Courts to the Privy Council, it is comparatively little used.

The Commonwealth Parliament has not as yet exercised the power, conferred on it by the Constitution, o f establishing inferior Federal courts o f original jurisdiction, to supplement the original jurisdiction of the High Court. It has, however, exercised to a considerable extent the power, which has no counterpart in either the Canadian or
American Constitution, of investing State courts (superior or inferior) with Federal jurisdiction. The effect of this is practically to utilize the State courts, in the exercise of the Federal jurisdiction vested in them by the Federal Parliament, as a substitute for Federal courts of both original and appellate jurisdiction (subject always to the appellate
jurisdiction o f the High Court).

Defence— In 1903 also was passed the Defence Act which effected the national organization, under a uniform law, of the last of the ‘transferred’ services— the Departments
of Naval and Military Defence— and superseded, as in the case o f the other transferred Departments, the State Acts and Regulations under which the Commonwealth Defence Forces and the Department of Defence had previously been administered.

Summary—As a result of the work of the two sessions of the first Parliament, by the end of the year 1903 the initial organization of the Commonwealth was complete in all essential points. The Executive Government, organized with the seven Departments of State, was working under the system of Ministerial responsibility to the Commonwealth Parliament; the Parliament itself was in full working order, with a franchise and electoral system of its own; the State Tariff had been replaced by a uniform Federal Tariff, with interstate free trade within the Commonwealth itself; the Federal Judiciary was constituted and had entered upon its duties; the Departments transferred from the States to the Commonwealth were governed and regulated by Federal law; and the Commonwealth Public Service was similarly controlled and administered.

But though the initial organization of the Commonwealth was complete, much remained to be done before the purposes for which the union had been entered into could be completely realized. A large number of the subjects in respect of which legislative power was vested in the Commonwealth Parliament remained undealt with; and although much has been done in the succeeding sessions, a vast field still remains untouched.

Naturalization—The subject o f the naturalization of aliens has been dealt with by the Naturalization Act 1903. Previously each State had granted letters of naturalization which were only operative in that State. The Commonwealth Act vested the right to issue certificates of naturalization, for the future, exclusively in the Commonwealth Government; but at the same time gave the full force of Commonwealth naturalization to State letters of naturalization issued before the commencement of the Act. The whole subject o f naturalization has thus been placed on a national footing.

Immigration— Each State had, at the establishment o f the Commonwealth, its own laws restricting the immigration o f undesirable persons— applicable alike to immigration from abroad or to immigration from other parts o f Australia. As regards interstate migration, these laws, on the imposition of uniform customs duties, become inoperative as regards interstate immigration, so far as they were inconsistent with the provision of section 92 of the Constitution that ‘intercourse among the States shall be absolutely free’. As regards the outside world they continued to be administered; but State regulation of what was henceforth essentially a national matter was obviously unsatisfactory, and unlikely to be effective. It was placed on a national basis by the Im migration Restriction Ac t 1901.

Patents, Trade Marks, Copyrights and Designs—The laws relating to industrial property have been nationalized by the Patents Act 1903, the Trade Marks Act 1905, the Copyright Ac t 1905, and the Designs Act 1906. In all these Acts, not only was a national law laid down for the future, but the administration of the existing State laws was also taken over so far as was necessary for the purpose of dealing effectually with existing rights and existing registration. In the case of patents and trade marks especially, certain difficulties and complications were met with in the transition from six jurisdictions to one jurisdiction. In both cases the rights attaching to existing State registrations were preserved, and the proprietors were given an option, under certain conditions, of reregistering under the Federal Act. For further details, reference may be made to the Acts themselves.

Census and S tatis tics— Provision has been made by the Census and Statistics Act 1905 for a periodical Australian census on a uniform basis, and for the collection of Australian statistics. Of course the State Acts relating to the same subjects have not been expressly affected— and indeed the Commonwealth Parliament had no power to affect them. There would be nothing inconsistent with the Federal Act in a State taking a census of its own, if it chose to do so, as often as it liked; but no State is likely to waste its money in useless duplication of this kind. With statistics the case is somewhat different;;thc States may desire to supplement the Commonwealth statistics with statistics of their own. But there is every probability that the^estabiishmeni of-ihc Commonwealth Statistical Department will lead to the discontinuance o f so much of the State work as is thereby rendered unnecessary.

Meteorology— By the Meteorology Act 1906 provision has been made for meteorological observation, records and reports. In establishing the Commonwealth Meteorological Service, the State meteorological establishments— so far as they are separable from astronomical observatories— were in effect taken over by arrangement with the States.

Further Particulars— For further particulars of the legislation of the Commonwealth Parliament, reference is made to the sessional volumes of Commonwealth Acts published by the Government Printer; and particularly to the Table, published with each volume from 1904 onwards, of Commonwealth legislation in relation to the several provisions of the Constitution. This table affords a ready index for the purpose of ascertaining how far the Commonwealth Parliament has exercised the legislative powers conferred upon it. Of course, in the short time that has elapsed since the establishment of the Constitution, it has not been possible to cover more than a small portion o f the whole field.

Meanwhile, owing to the reservation to the States of concurrent powers of legislation on most subjects (subject only to the paramountcy of Federal legislation when passed), State laws and State administration continue unaffected in regard to any subject-matter which the Commonwealth has not yet dealt with. The fact that each Commonwealth Parliament has power to legislate on a given subject does not affect the validity of existing State legislation on the subject, and does not prevent the State Parliament from altering or adding to that legislation from time to time. Few of the Commonwealth powers of legislation are exclusive, and those few have relation to matters which in their nature can only be dealt with by the Commonwealth Parliament. Generally speaking, the only limitation on State legislative power is that it must not be exercised in a way which is inconsistent with the Constitution or with laws passed by the Commonwealth Parliament. State legislative powers and State laws are expressly preserved, except to the extent of such inconsistency (sections 107, 108).

The result, shortly stated, is that there is no hiatus pending Federal legislation over any subject on which the States have concurrent jurisdiction. State laws and State administration are not displaced till Federal laws and Federal administration are ready to take their place. The process of the assumption by the Commonwealth of the full scope of its powers and functions has been, and will continue to be, a gradual one. In this way the federalization of Australian institutions partakes of the nature of a natural growth. The Constitution established the conditions under which the growth could take place; it did not of itself, for the most part, create sudden changes in existing law or existing institutions. The union of States which had progressed so far-often in widely different directions— along the path of self-government, could hardly, without excessive friction and confusion, have been accomplished in any other way.(5)

(1) Furnished pursuant to a request from the Governor of the Transvaal in anticipation of the holding of a convention ‘to draft a constitution for a United South Africa’.

(2) The British North America Act 1867 (Imp.).

(3) Commonwealth v. McKay and R. v. Barger 6 C.L.R. 41.

(4) Judiciary Act 1903.

(5) This opinion is not in the Opinion Books but was published in Commonwealth of Australia, Pari. Papers 1912, Vol. Ill, p. 582.

(6) This opinion was minuted by Mr Groom, Attorney-General, ‘I have carefully perused . . . and fully agree with the views expressed’.