The Acting Ministerfor Defence:

A Bill has been introduced in the Queensland Parliament to repeal section 67 of the Queensland Defence Act of 1884. That section provides that:

Every officer and man of the Defence Force being in uniform shall, on giving reasonable notice to the Commissioner for Railways, and on production of a pass signed by the commanding officer of the corps, be conveyed free over all the Queensland Government Railways, from his home or usual place of residence, to all musters, drills, parades, and rifle practices, and back again.

It also imposes penalties on all persons who fraudulently obtain or attempt to obtain free conveyance under the section.

The Acting Minister for Defence refers the matter to me for advice as to the power of a State Parliament to repeal a clause of a Defence Act.

Section 108 of the Constitution is as follows:

Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

Section 52 of the Constitution provides that:

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . (ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth.

The power of alteration and repeal reserved to the State Parliaments by section 108 cannot be construed to extend to laws which deal with matters within the exclusive power of the Federal Parliament: Quick & Garran, p. 938; Inglis Clark, p. 96; Harrison Moore, p. 309. The question therefore is whether the section of the Queensland Act proposed to be repealed deals with a matter within the exclusive power of the Federal Parliament.

If it deals with a matter relating to the Department of Defence, within the meaning of section 52 of the Constitution, it is within the.exclusive power of the Federal Parliament and may not be altered or repealed by the State; if it does not deal with such a matter, it may be so altered or repealed.

The mere fact that the section is contained in a Defence Act is immaterial. The section is a complete enactment in itself, and the power of the State with regard to its alteration or repeal is the same as if it stood in a separate Act by itself, or were contained in a Railway Act. The substance of the section, and not the subject-matter of the Act as a whole, is to be looked at.

The section does in a sense relate to the Department of Defence; but it relates more directly to the Railway Department of the State, imposing an obligation on that Department to render certain gratuitous services to the State Military Forces. In my opinion the matter does not 'relate to the Department of Defence' within the meaning of section 52, and the State Parliament has power to repeal the section.

[Vol. 2, p. 311 ]